SARATH AMUNUGAMA AND OTHERS v. KARU JAYASURIYA, CHAIRMAN, UNITED NATIONAL

017-SLLR-SLLR-2000-V-1-SARATH-AMUNUGAMA-AND-OTHERS-v.-KARU-JAYASURIYA-CHAIRMAN-UNITED-NATIONAL-.pdf


SARATH AMUNUGAMA AND OTHERS
v.KARU JAYASURIYA, CHAIRMAN.UNITED NATIONAL PARTY AND OTHERS
SUPREME COURTAMERASINGHE. ACTG. CJ.,
BANDARANAYAKE, J. ANDISMAIL, J.
SC SPL.(E) NO. 4/99 WITHSC SPL.(E) NO. 5/99SC SPL.(E) NO. 6/99SC SPL.(E) NO. 7/99SC SPL.(E) NO. 8/9926th AND 27™ JANUARY. 2000
Expulsion of members of a recognized political parly who are Members ofParliament – Article 99(13)(a) of the Constilulion – Validity of the expulsion- Procedural justice – Audi alteram partem rule.
Five petitioners (whose cases were heard together) were Members ofParliament representing the United National Party which is a recognizedpolitical party. They were summarily expelled from the membership ofthe Party on a decision of the Working Committee of the Party. Theimmediate ground of expulsion was that the petitioners had met Presi-dent Chandrika Bandaranaike Kumaratunga and assured her of win-ning the Presidential Election 1999 when in fact the United NationalParty had nominated its leader Ranil Wickremasinghe as a candiate atthat Election. Two more allegations made especially against petitionerAmunugama were (1) announcing to the national media about theformation of a national government without a mandate from the Partyand (2) that he had told the BBC that he would leave the UNP if the Partyfailed to respond to his national government concept.
No explanations were called for from the petitioners, no charge sheetswere served and no inquiry was held giving an adequate opportunity tothe petitioners to defend themselves. The Working Committee took thedecision for immediate expulsion on the basis that the petitioners'conduct adversely affected the election campaign, much damage hadbeen done to the Party and an urgent decision had to be taken to protectthe welfare of the Party and to ensure the unity of its members.
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Held :
There was no mandatory requirement that disciplinary proceedingsshall only be conducted by a Disciplinary Committee (other than theParty Working Commitee) appointed by the Party Working Committee.
There was no justification for the failure of the respondents toobserve the principles of natural justice and grant the petitioners ahearing before they were expelled. The expulsions of the petitioners were,therefore, invalid.
Per Amerasinghe, Actg. CJ.
“I am of the view that the respondents have failed to establish that theexpulsions fell within the category of extraord inary, urgentcircusmtancesrecognized by courts of law."
Cases referred :
Gamini Dissanayake v. M.C.M. Kaleel and Others (19931 2 Sri LR135. 155-164, 186
Stevenson v. United Road Transport Union (1997) 2 ALL E.R. 941,951
Lau Liat Mena u. Disciplinary Committee (1968) A.C. 391
Board of Trustees of Maradona Mosque v. Badi-ud-din Mahmud,Minister of Education (1967) 1 A.C. 13; (1966) 68 N.L.R. 217
Hanson v. Church Commissioners for Ehgland (1978) Q.B. 823.838
R v. Thames Magistrates' Court, ex p. Polemis (1974) 1 W.L.R.1371. 1375, 1378.
R v. Pharmaceutical Services Committee ex. p. Gordon D. ConwayLtd the Times, November 7, 1970.
Morris v. Lawrence (1977) R.T.R. 205
Russel v. Duke of Norfolk (1949) 1 ALL E.R. 109, 118
R. v. Secretary of State for the Home Department, ex p. Doody(1994) 1 A.C. 531, 560, 563
Premaratne v. Srimani Athulathmudali and others S.C. (SPLJ1/96S.C. Determination of 27 February 1996
Ridge u. Baldwin (1964) A.C. 40
A.G. u. Ryan (1980) A.C. 718
Abbott v. Sullivan (1952) 1 K.B. 189,198
Cooper v. Wandsworth Board of Works (1863) 14C.B. (N.S.) 180
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R v. Chancellor of the University of Cambridge (1723) 1 Str. 557.567
R v. Justices of West Riding of Yokshire. ex p. Thornton (1837) 7Ad. on E. 583. 589
R v. Wilson (1835) 2 ad. on E. 817. 826
Wood v. Wood (1874) L.R. 9 Ex 190. 196
Board of Education v. Rice [1911] A.C. 179. 182
R v. Leman Street Police Station Inspector, ex p. Venicof (1920) 3
K.B. 72
Nakkuda All v. Jayaratne (1950) 51 NLR 457; (1951) A.C. 66
Hounslow L.B.C. v. Twickenham Garden Developments (1971)Ch. 233. 258
R v. Aston University Senate ex p. Rojfey (1969) Q.B. 538. 552
John v. Rees (1970) Ch. 345. 382. 402
General Medical Council v. Spackman (1943) A.C. 627, 644
Ramamoorthy and Rameshwaran v. Douglas Devananda andOthers (1998) 2 Sri LR 278. 285
Anamunthundo v. Oilfield Workers Trade Union (1961) A.C. 945.956
Chief Constable of Police v. Evans (1982) 1 W.L.R. 1155, 1160
R v. Secretary of Stale for the Environment, ex p. Brent L.B.C.(1982) Q.B. 593, 734
R v. Secretary of State for Education, ex p. Prior (1994) C.R. 877
R v. Sussex JJ.. exp. Me Carthy (1924) 1 K.B. 256. 259
Altco Ltd v. Sutherland (1971) 2 Lloyd's Rep. 515
Maxwell u. Department of Trade (1974) 1 Q.B. 523. 540
Fullbrook v. Berkshire Magistrates' Courts Committee (1971)
G.R. 75. 97
Scott v. Aberdeen Corporation (1976) S.L.T. 141
Council of Civil Service Unions v. Minister for the Civil Service(1985) A.C. 374
Lloyd v. McMahon (1987) A.C. 625. 702
Durayappah v. Fernando (1966) 69 NLR 265, 267 (1967) 2 A.C.337. 345
Pratt v. Wanganui Education Board (1977) 1 N.Z.L.R. 476, 485
Earl v. Slater & Wheeler (Airlynej Ltd. (1973) 1 W.L.R. 51
Tilak Karunaratne v. Mrs Sirimavo Bandaranaike and Others(1993) Sri L.R. 90
SC Sarath Amunugama and Others u. Kara Jayaswiya, Chairman, J 75
United National Party and Others (Amerasinghe, Actg. CJ.)
APPLICATION in terms of Article 99( 13)(a) of the Constitution challeng-ing expulsion from the United National Party.
E. D. Wickremanayake with Gomin Dayasiri, Nigel Hatch and U. AbdulNajeem for the petitioners in Nos. 4 – 7/99.
D.S. Wijesinghe, P.C. with Asoka Somaratne, Dr. JayamapthyWickrenmratne and C. Samaranayake for the petitioner in No. 8/99.
Tilak Marapana, P.C. with Dulinda Weerasuriya, Nalin Ladduwahetty,Jayantha Fernando, Anuja Premaralne, DhammikaJayanetthi and JanakaMarapana for 1sl to 4th respondents in Nos. 4 and 7/99.
ShiblyAziz P.C. with DayaPelpola, S.J. Mohideen. A.P. Niles, R.L. Perera,Ronald Perera and S. Dayaratne for the respondents in Nos. 5 – 6/99.
Daya Pelpola with Anil Rajakaruna, Luxman Perera and RonaldPerera forrespondents in No. 8/99.
Cur. adv. vult
3rd February, 2000AMERASINGHE, ACTING C. J.
It was agreed by the Counsel for the petitioners in thismatter that all five cases should be heard together since theyessentially related to similar issues.
The fifth respondent is the Secretary-General of Parlia-ment and has been made a party for the purposes of noticeonly. A reference to “respondents” hereinafter means andincludes only the Is' to 4th respondents.
The petitioners are Members of Parliament. They weremembers of the United National Party, a recognized politicalparty. At the time of becoming Members of Parliament theirnames appeared on the nomination papers of the UnitedNational Party. In a letter dated the 8th of November 1999, theGeneral Secretary of the United National Party (the secondrespondent) wrote to each of the petitioners as follows:
‘The Working Committee of the'tlnited National Party atits meeting held on 21st October 1999 having considered theProclamation issued by H. E. the President under Art.31
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(3A)(a)(i) of the Constitution declaring her intention of appeal-ing to the People for a mandate to hold office by election for afurther term, decided to oppose the mandate so sought, bynominating a candidate to contest at the said election with aview to securing the election as President of Sri Lanka amember of the United National Party.
The Working Committee further resolved that the Leaderof the Party Hon. Ranil Wickremesinghe MP, should be theParty’s candidate.
The aforesaid decisions of the Party Working Committeewere ratified at a Special Convention of the Party held on 3 lslOctober 1999 and also by the Party Parliamentary Group andreceived publicity in the print and electronic media.
The Working Committee at its meeting held today (8thNovember 1999) at 9.00 a.m., took note of the fact that youhave nevertheless, without prior authority or sanction of theUnited National Party, attended a meeting at Temple Trees on5th November 1999 at which were present H. E. ChandrikaBandaranaike Kumaratunga (who is the rival Presidentialcandidate of the People’s Alliance) and several of her Partycolleagues. At this meeting you signified your intention andwillingness to support her candidature at the forthcomingelection as against that of our Party candidate. You had alsoparticipated in discussion of policy issues such as formationof a national government without prior discussion within or amandate of the Party.
The said meeting and your presence and the statementsthereat and the pledge to support her as against the Party’scandidate received wide publicity in the daily press, the statecontrolled electronic media as also other electronic media.
The Working Committee notes additionally that you haveacted as above despite your being a United National PartyMember of Parliament . . .
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Your aforesaid conduct is a serious and flagrant violationof Party loyalty and discipline and a violation of your duty toact according to and uphold the Constitution of the UnitedNational Party.
In view of the above, the Working Committee of the Partyat its said meeting held today and acting under the powersvested in it under Article 6.3(a) read with Article 7.15 of theConstitution of the United National Party resolved that you beexpelled with immediate effect from membership of the Partyin as much as your aforesaid conduct is a gross violation of theprovisions of Articles 3.3(a), (b), (c) and (d) read with Article 2.1and 2.2 of the Constitution of the Party.”
On the 6th of December 1999, three of the petitioners filedapplications (E) 4/99 – (E) 7/99 in the Supreme Court in termsof Article 99( 13)(a) of the Constitution. On the7th of December1999, the fourth petitioner filed a similar application (E) 8/99.
Article 99( 13)(a) of the Constitution states as follows :
“Where a Member of Parliament ceases by resignation,expulsion or otherwise to be a member of a recognized politicalparty or independent group on whose nomination paper(hereinafter referred to as the “relevant nomination paper”) hisname appeared at the time of his becoming such Member ofParliament, his seat shall become vacant upon the expirationof a period of one month from the date of his ceasing to be suchmember :
Provided that in the case of the expulsion of a Member ofParliament his seat shall not become vacant if prior to theexpiration of the said period of one month he applies to theSupreme Court by petition in writing, and the Supreme Courtupon such application determines that such expulsion wasinvalid. Such petition shall be inquired into by three Judgesof the Supreme Court who shall make their determinationwithin two months of the filing of such petition. Where theSupreme Court determines that expulsion was valid theexpulsion shall occur from the date of such determination.”
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The petitioners pray that the Court declares their expul-sion from the membership of the United National Party invalidand of no legal effect; sets aside the order and/or decision ofthe Working Committee of the United National Party expellingthem from the Party; and declares that the petitioners remainmembers of the United National Party.
The reliefs claimed are based, among others, on theaverment that the expulsions were in contravention of themandatory provisions of the Party Constitution and/or Disci-plinary Rules of the Party. The petitioners allege that:
although under the Party Constitution the Working Com-mittee mandatorily has to appoint a disciplinary commit-tee to inquire into allegations of misconduct or indisciplineagainst party members, and it is only such a committeethat could conduct any inquiry into any allegations ofmisconduct or indiscipline, no notice of the appointmentof such a commitee was given, and in fact no suchcommittee was appointed;
they were not notified that complaints had been madeagainst them and/or that disciplinary proceedings hadbeen initiated against them;
no explanation was called for from the petitioners;
no charge sheet was served on them;
the date, time and place of inquiry were not notified lo thepetitioners and they were not called upon to attend suchan inquiry;
no inquiry was held against the petitioners.
The petitioners submitted that it was a recognized condi-tion of the membership of the Party that disciplinary actionwould be taken in accordance with the procedures prescribedby the Party’s “Guidelines.” The petitioners slate that they
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were expelled in contravention of the Party Guidelines. There-fore the expulsions were unreasonable and/or arbitrary and incontravention of their “legitimate expectations”. Consequently,the expulsions were invalid and of no effect.
The decision to expel the petitioners was taken at ameeting of the Working Committee on the 8,h of November,1999. Article 6.3(a) of the U.N.P. Constitution empowers theNational Executive Committee “to enforce the Constitution,standing orders and rules and the code of conduct of the Party,and to take any action it deems necessary for such purpose,whether by way of disciplinary action including expulsion orsuspension against any individual member or an office beareror otherwise …” Article 7.15 states that ‘The Party WorkingCommittee shall have the power to exercise the powers,functions and duties vested in it by the National ExecutiveCommittee . . Admittedly in terms of paragraph 01 of theU.N.P. “Guidelines for the conduct of disciplinary inquiries”,‘The General Secretary of the Party should write to the memberconcerned informing him that a complaint had been receivedand notifying him of the Panel of Party Members appointed bythe Working Committee to inquire into and report through theDisciplinary Committee on the complaint.” Article 7.13 of theU.N.P. Constitution states that ‘The Party Working Committeeshall appoint a Disciplinary Committee.” However, in my view,there was no “mandatory” requirement that disciplinary pro-ceedings shall only be conducted by a Disciplinary Committee(other than the Party Working Committee) appointed by theParty Working Committee. The decision to expel the petition-ers cannot be assailed on the ground that the WorkingCommittee lacked authority. Cf. per Fernando, J. in GcuniniDissanayalce v. M.C.M. Kaleel and Others,01.
With regard to the averment that there was no inquiry,assuming that the Working Committee itself conducted theinvestigation on the 8th of November 1999, such investigationdid not proceed on the basis of the Guidelines which provideas follows :
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“05.The inquiry should commence with the Panel brieflyoutlining to the member the nature of the evidence theCommittee has available . . . The Committee should thenquestion the complainant, if any further clarification isnecessary, in the presence of the member. Also, any otherwitnesses. The member should be given the opportunityto cross-examine the complainant and the witnesses.
Unlike a Court of Law, a panel conducting a domesticinquiry is entitled to take steps on its own initiative toobtain information and documents etc. relevant to thecharges. However, if the Panel intends taking into consid-eration any such material, it must inform the memberconcerned during the inquiry, and give him an opportu-nity of explaining the same.
The Panel has the flexibility to adopt its own procedure onwhich the above-stated guidelines (text obscure). . . Whatis important however is to provide the member a fairhearing and a fair chance to explain or controvert theevidence against him.
The member concerned will be entitled to give evidence onhis own behalf or to call relevant witnesses and producedocuments. The Panel will be entitled to question themember or his witnesses to obtain any clarification.
It will be advisable to maintain notes of the main matterstranspiring in evidence etc. at the inquiiy. These notesshould be signed by the Chairman of the Panel . . .”
According to the minutes of the meeting of the WorkingCommittee, pursuant to which the letters of expulsion wereissued, as far as the matters under consideration were con-cerned, what took place, was as follows :
“Presidential Election 1999”
The General Secretary of the Party referred to the Presi-dential election. Since Her Excellency the President Chandrika
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Bandaranaike Kumaratunga had sought election for a furtherterm of six years, the United National Party had decided thatits party leader, Mr. Ranil Wickremasinghe, should be itscandidate at that election. There is a pronouncement that onthe 5th of November 1999 eight gentlemen (who are named andinclude the petitioners) met the President and assured her ofwinning the election. Their pronouncement has been con-veyed to the public through the radio, television and printedmeans of communication. The relevant newspaper reportswere tabled. The conduct of these gentlemen violate Articles2(i), 2(ii) and 3:3(a) (b) (c) (d) of the Party Constitution. Noticeof the meeting taking place today has been given to Mr. NandaMatthew, Mr. Susil Moonesinghe and Dr. Stanley Kalpage andthey have by Fax stated that they are unable to be present.
Further, it was stated that a letter dated 03/11/99 hadbeen sent to Mr. Sarath Amunugama requiring him to showcause why he should be excused for announcing to thenational media about the formation of a national governmentwithout the permission of the leader of the Party and of itsWorking Committee.
Mr. John Amaratunga, M.P., observed that some of thepeople concerned were officials of the U.N.P. and members ofits Working Committee and that at this time the misconductof these people would adversely affect the election campaignand confuse the minds of voters. Because of wide publicity,much damage had been done to the Party. Moreover, he said,they had violated the rules of the Party and the conditions oftheir membership. An urgent decision had to be taken toprotect the welfare of the Party and to ensure the unity of itsmembers. He proposed the immediate expulsion of the eightpersons.
Mr. Gamini Lokuge, M.P., spoke in support of the pro-posal, and the members of the Working Commitee unani-mously voted in favour of the proposal. Mr. RanilWickramasinghe abstained from voting. It was decided thatthe Secretary-General of Parliament be informed of the expul-sion of five Members of Parliament.
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A Committee of six persons was appointed to deed withother members who worked against the Party.
The U.N.P. Guidelines provide that where a complaint isreceived against a member of the Party,
“01.The General Secretary of the Party should write to themember concerned informing him that a complaint hadbeen recieved and notifying him of the names of the Panelof Party Members appointed by the Working Committee toinquire into and report through the Disciplinary Commit-tee on the complaint . . .
The Panel should examine the complaint made, and theChairman of the Panel should write to the member con-cerned requesting his explanation, in the first instance. Acopy of the complaint should be forwarded to the member.A period of seven/ten days could be allowed for thesubmission of the member’s explanation.
If the explanation submitted is unsatisfactory or unac-ceptable, and the Panel is of the view that further inquiryis necessary, a charge-sheet should then be prepared bythe Panel and forwarded to the member. . .
The Panel should notify the complainant also to be presentat the inquiry.”
Admittedly, as far as the petitioner in Application (E) 4/99,Dr. Sarath Amunugama, is concerned, a letter dated the3rd ofNovember 1999 had been sent to him by the General Secretaryof the U.N.P. (Mr. Gamini Atukorale, the second respondent).That letter stated as follows :
‘The Daily News in its publication of Monday lstNovember1999, under the headline Sarath Amunugama tells BBC hewill quit U.N.P. has stated “he will definitely leave the U.N.P.if there is no proper response from the Party for his NationalGovernment concept.” It is further noted that there has been
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no denial by you as to the making of this statement or theaccuracy of the contents of the article under reference. (Copyof the article enclosed).
You have thus acted in breach of the Party Constitution,Party Discipline and contrary to the conduct required of aU.N.P. Member in Parliament and the deicision of the Parlia-mentary Group at its meeting held on '22-10-99, that nomember makes any statements to the media withour priorapproval of the Party.
1 would be grateful to have your immediate explanationand response to the aforesaid to reach me not later thanSunday 7th November 1999.”
On the 5th of November, 1999, Dr, Amunugama respondedas follows :
“Without prejudice to my rights to proffer a fuller re-sponse, I wish to inform you that you have failed to inform meto what provisions of the Party Constitution I have contra-vened or what aspect of party discipline and/or the conductrequired of a U.N.P. Member in Parliament that I have allegedlyacted in breach of.
Your said letter is accordingly vague and incomplete asregards material particulars. You have also failed to afford mesufficient time to respond to your said letter; and in thecircumstances as I require time to not only collate informationin order to respond to your said letter but also be furnishedwith the above mentioned information, I request that youinform me of what precise provision/s I have breached andsend me a copy of the Party Constitution and all otherdocuments you rely on in connection therewith, and afford meat least a week therefrom to respond. 1 also wish to reiteratethat I remain a member of the U.N.P.”
According to the minutes of the Working Committee, thetwo letters tabled related to Dr. Amunugama’s activities
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concerning the formation of a national government. He hadasked for clarification of the charges against him. He hadwanted to know what provisions of the Party Constitution hehad violated and called for a copy of the Constitution and allother documents relied upon in support of the charge, and heasked for time to submit his defence. Sometimes "A case maybe of so uncomplex a character and the issues may be so wellknown to all parties concerned that no more particular noticeof any charge may be required.” Per Buckley. L.J. inSleuensonv. United Road Transport Union'21. The case against Dr.Amunugama was complex and the issues were far from clear.He had a legal right to know the precise charge he had to meet.The charge should have been distinctly stated. He wasexpelled for two reasons : (1) Participation in the discussion ofpolicy issues such as the fonnation of a national governmentwithout prior discussion of mandate of the Party; and (2)supportingH.E. ChandrikaBandaranaikeKumaratunga. Thesole charge in the letter to Dr. Amunugama was that he hadtold the BBC that he would leave the U.N.P. if there was noresponse from the Party for his National Government conceptand that he had thereby acted in breach of the "Par ty Consti-tution, Party Discipline and contrary to the conduct requiredof a U.N.P. Member in Parliament and the decision of theParliamentary Group at its meeting held on 22/ 10/ 1999 thatno Member makes any statements to the media without priorapproval of the Parly. That was somewhat different to thecharge relating to the matter of a national government as setout in the letter conveying the decision to expel him.
Even assuming that he had notice of the first charge. Dr.Amunugama had no notice of the second, and therefore as amatter of law, he could not have been expelled. Eg. seeLauLiatMena v. Disciplinary Commitee,(3>, where notice was given ofproposed action on ground X but action was taken on groundY of which no notice, or inadequate notice, had been given. InBoard oJTrustees oJMaradanaMosque v. Badi-uddin mahmud,Minister of Education,'41, the Privy Council held that there hadbeen a breach of natural justice where the Minister told the
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managers of a school of one allegation against them to whichthey prepared a defence but, in his decision, made it plain thathe was taking over the school in reliance on a breach of astatutory provision of which the managers had no notice at all.
Dr. Amunugama had asked for time to respond. As amatter of law, he was entitled to sufficient time to have theopportunity of presenting an effective answer or defence:Hanson v. Church Commissioners for England!5*; R v. ThamesMagistrates’ Court, ex p. Polemis16*; R v. Pharmaceutical Serv-ices Committee, ex p. Gorden D. Conway Ltd!7*; Morris v.Lawrence!81. He received no response whatever to his letterwhether on the question of time or the other matters raised byhim. In the circumstances, did his failure to respond to thecharge made against him, namely of supporting or sponsoringthe concept of a national government, before the meeting heldon the 8th of November make him guilty of conduct warrantingexpulsion, or for that matter any other form of discipline, onthe 8th of November? The ‘show- cause’ letter had been datedthe 3rd of November 1999. According to paragraph 02 of theU.N.P. Guidelines, a period of seven/ten days should beallowed for a member’s explanation. In any event, if theWorking Committee was on the 8th of November 1999 acting asa disciplinary committee. Dr. Amunugama was not invited tothat meeting.
Mr. Nanda Matthew (the petitioner in (E) 5/99) andMr. Susil Moonesinghe (the petitioner in (E) 7/99) were invitedto attend the meeting of the Working Commitee as Members ofthat Committee, but without any intimation that the agendaof the meeting included disciplinary action agains t them. Theydid not attend the meeting due to prior engagements. Indeed,the disciplinary proceedings are reported in the minutes of themeeting under the caption “Presidential Election 1999”.Mr. Wijepala Mendis and Mr. Chula Bandara, not beingmembers of the Working Committee, were not invited to attendthe meeting and did not have even a remotely possible, albeitinadequate, opportunity of defending themselves.
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Both Dr. Amunugama as well as the other petitionersought, in my view, to have had a reasonable opportunity ofpresenting their cases and making representations on theirown behalf. See per Tucker L.J. in Russell u. Duke Norfolk,1®.This was distinctly contemplated by the Party Guidelines.Procedural fairness generally requires that persons liable to bedirectly affected by a decision of a person or a body of personsbe given adequate notice of what is proposed so that they maybe in a position to make representations on their own behalf.This has been described as a proposition of common sense.See per Lord Mustill in R. v. Secretary of State for the HomeDepartment, ex p. Doody,001.
The petitioners’ averments that no explanations werecalled for, no charge-sheets were served, no notice of the date,time and place of inquiry were given, and that the petitionerswere not called upon to attend the inquiry, were not disputedat the inquiry by this Court. In fact, the petitioners had noopportunity for contradicting, correcting or explaininganything prejudicial to their views. They were expelledsummarily.
On the face of the evidence on record. I hold that theaverment that the Party Guidelines in respect of disciplinaryinquiries were not observed has been established.
In deciding to expel the petitioners there was a failure onthe part of the respondents to follow the usual, salutaryprocedural steps laid down by the political party to which thepetitioners belonged. The Guidelines of the Party prescribeda process for disciplinary action to ensure fairness, and as acondition of membership it was to be expected that the usualprocess would be duly followed. •
In the absence of proof of circumstances permitting suchfailure, the failure to follow the prescribed procedures of thepolitical party of the petitioners would ordinarily, make anexpulsion invalid since, as far as the petitioners are concerned,it is unlawful, null and void and of no force or avail in fact or
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in law. Premaratne v. Srimani Athulathmudali and Others,11 l>;Cf. Ridge v. Baldwin,1121; A-G., v. Ryan,"31', Paul Jackson,Natural Justice, 1979, p. 194. The respondents ought not tohave condemned the petitioners without giving them anopportunity of being heard in their own defence. Cf.Abbott u.Sullivan,0 4>.
The petitioners allege that their expulsions were alsoinvalid because the respondent failed to comply with theprinciples of “natural Justice.” “Natural Justice” is an ambigu-ous phrase, and consigned from time to time to the lumberroom as a term “sadly lacking in precision”. E.g. see PaulJackson, op. cit., pp. 1-22; Those who decline to accept anyform of justice as natural may take their choice from a widerange of alternative phrases, including, "substantial justice”,“fair play in action”, “fair play written large and juridically”. DeSmith, Woolf and Jowell, Judicial Review of AdministrativeAction, (1995), pp. 377-378. Whatever the uncertainty inher-ent in the phrase, “natural justice" connotes, above all, themaxim audi alteram partem.
What is the fuss about natural justice and the right to afair healing about? The right to a hearing has been acceptedas a basic principle in many civilizations and over many years.In Greece, the requirement of hearing both sides beforereaching a conclusion formed a part of the Athenian judicialoath and is referred to by Aristophanes, Euripedes andDemosthenes. The Greeks inscribed the precept that no manwas to bejudged unheard upon images in places wherejusticewas administered. The Romans too accepted the principle.Seneca in Medea referred to the injustice of reaching a decisionwithout a full hearing – Qui statuitaliquidparte inauditaaltera,aequum, licet statuerit, haud aequus fuerit; and the Digestcontained a prohibition on a paterfamilias killing his sonwithout a hearing. As might be expected, in Sri Lanka toomatters were adjudicated after hearing both sides: “ubhayapaksayen ma adyanta asa ganna dadek dcC, says theSaddharmarathnavaliya365. Only Rhadamanthus, the crueljudge of Hell, it seems punished before he heard.
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Indeed, having regard to the widespread acceptance ofthat basic principle, G. Del Vecchio injustice went so far as tosuggest that it belongs “rather to the common consciousnessof mankind than to juridical science.” The rule has beendescribed as being of “universal application and founded onthe plainest principles of justice”. Per wiles, J. in Cooper u.Wandsworth Board of Works,115'. (On the historical develop-ment of the concept of "natural justice”, see de Smith, Woolf &Jowell, op. cit. pp. 377-399; H.W.R. Wade & C.F. Forsyth,Administrative Law, (1995) pp. 497-578).
As far as the law is concerned, we have in Sri Lanka in thisarea closely followed the common law which, from very earlytimes, recognized the right to a fair hearing. InR. u. Chancellorof the University of Cambridge,1161, support for the light to ahearing was based by Fortescue J. on the events in the Gardenof Eden; “I remember to have heard it observed by a verylearned man upon such an occasion, that even God himself didnot pass sentence upon Adam, before he was called upon tomake his defence. Adam’, says God, ‘where art thou’? ‘Hastthou not eaten of the tree, whereof 1 commanded thee that thoushouldst not eat?’ And the same question was put to Eve also”.
Throughout the nineteenth century the English courtsfreely, and sometimes vigorously, imputed an obligation toobserve the rule. Two dicta of Lord Denman illustrate theimportance attached to the right to a fair hearing during thatera. “No rule is more invariable than that a person shall notbe prejudiced in any manner without being heard.” R. u.Justices of West Riding of Yorkshire, ex p. Thomlon!'71. “It isimplied by nature justice . . . that no one ought to suffer anyprejudice . . . without having first an opportunity of defendinghimself.” R v. Wilson,"81.
The rule was not confined to the conduct of strictly legaltribunals but was said to be “applicable to every tribunal orbody of persons invested with authority to adjudicate uponmatters involving civil consequences to litigants.” Per Kelly,C.B. in Wood v. Wood,"91.
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The rule continued to be liberally applied in the early partof the twentieth century. Thus Lord Lorebum in Board ofEducation u. Rice,m, said that to “act in good faith and fairlylisten to both sides … is a duty lying upon everyone whodecides anything.”
Commencing perhaps with R u. Leman Street Police StationInspector, ex p. Venicof1211, the audi alteram partem rule suf-fered debilitation, at first, partly on account of the exigenciesof unsettled wartime conditions. But the climate of judicialopinion persisted even after hostilities had ended. Eventually,it entered what has been described as its “twilight” years. Andthat era was influenced by the decision in Nakkuda Alt v.Jayaratne,(22,, in which it was decided by the Privy Council thata Ceylon trader could be deprived of his trading licence withoutany trial or hearing, although Judges of the Supreme Court ofCeylon (as Sri Lanka was then known) were, in general, firmlycommitted to the principle of hearing the other side.
Since the House of Lords case inRidge u. Baldwin, (supra),the courts have so energtically extended frontiers of naturaljustice that Meg any, J. was impelled to recommend that itsprinciples “must be confined within proper limits and notallowed to run wild.” Hounslow L.B.C. u. Twickenham GardenDevelopments,1231.
Today, in certain circumstances, natural justice may notalways involve a right to a fair hearing. E.G. R. u. AstonUniversity Senate, exp. Roffey,(24>, per Donaldson. J. and, as weshall see, the respondents in this inquiry rely upon thatposition. Yet it must be noted that the rule of law requiressome form of due process designed to ascertain the truth andthat the precepts of natural justice insure that legal order willbe impartially and regularly maintained. John Rawls, ATheory of justice, (1972), p. 239. It must also be noted that fairproceedings aim not merely at such instrumental ends asaccuracy but that they are also a constituent element of thelegal and democratic process which should treat individualswith concern and respect. De Smith, Woolf & Jowell. p. 376,note 2.
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I have briefly set out the ground lying behind the issuespertaining to the matters before me, particularly the audialteram partem rule, so that what follows may be betterunderstood. The respondents do not deny the importance ofthe rule; their case is that, in the circumstances of the mattersbefore us, the petitioners were not entitled to a hearing. Tworeasons were given: (1) Uselessness and (2) urgency.
I am unable to accept the submissions of learned counselfor the respondents that a hearing would have been "useless”for several reasons.
A hearing was not useless, for a hearing before theoffending decision of expulsion might have assuaged the paincaused to the petitioners as well as their families, friends andsupporters. As Megarry, V.C. observed in John u. Rees,1251'.‘Those with any knowledge of human nature who pause tothink for a moment (are not) likely to underestimate thefeelings of resentment of those who find that a decision againstthem has been made without their being afforded any oppor-tunity to influence the course of events."
Wade & Forsyth, op. cit. p. 526, point out that "in principleit is vital that the procedure and the merits should be keptstrictly apart, since otherwise the merits may be prejudgedunfairly.” The observations of Lord Wright in General MedicalCouncil v. Spackmanjs61 (cited later in my judgement), arequoted in support. “If the principles of natural justice areviolated in respect of any decision it is, indeed, immaterialwhether the same decision would have been arrived at in theabsence of the departure from the essential principles ofjustice. The decision must be declared to be no decision.”
I should also refer to the following observations of deSmith, Woolf & Jowell at p. 500: The Courts have rightlycautioned against the suggestion 4.hat no prejudice has beencaused to the applicant because the flawed decision wouldinevitably have been the same. It is not for the Courts tosubstitute their opinion for that of the authority constitu ted bylaw to decide the matters in question.”
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The respondents maintained that a fair hearing wouldhave been futile. It would have made no difference to theresult. Numerous newspaper reports relating to events beforethe expulsion were read, it was said by learned counsel for therespondents – to establish the guilt of the petitioners – and afterthe expulsion – “to throw light” on the petitioner’s intentionsand “corroborate” the evidence available against them whenthe decision to expel them was taken. Learned counsel for therespondents submitted that there was clear and sufficientevidence that the petitioners supported candidate PresidentChandrika Bandaranaike Kumaratunga, although the U.N.P.,of which the petitioners were members, had nominated itsleader, Mr. Ranil Wickramasinghe, to oppose PresidentChandrika Bandaranaike Kumaratunga at the forthcomingPresidential Election. It was pointed out that the petitionerswere expelled for violating Article 3.3 of the U.N.P. Constitu-tion which states that
“In accepting membership a person agrees
To accept the principles, policy and code of conductof the Party.
To conform to the Constitution, Rules and StandingOrders of the Party.
To give all possible support to the candidates nomi-nated by the Party and in noway to support any otherperson standing against such candidates . . .
Not to take part in any political or other activitieswhich conflict or might conflict with the above under-takings and not to bring the Party into disrepute.
. . .”
The respondents submitted that the crucial issue was notthe question of a national government, which the petitionershad stressed at the inquiry before this Court, but the fact that
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the petitioners had pledged their support for. and in factsupported, a person who was standing against the leader of theU.N.P. who had been nominated by the U.N.P. In the circum-stances, even if the petitioners had been formally charged,noticed to appear and heard, there could have been no defenceto the charge and there was nothing that could have altered thedecision arrived at by the Working Committee. The principlesof natural justice would have been of no avail. A hearing wouldhave been useless.
Procedural objections may be made by unmeritoriousparties and relief may sometimes be refused because a fairhearing could have made no difference to the result. However,experience shows that unanswerable charges, may, if theopportunity be given, be answered; inexplicable conduct maybe explained. Wade & Forsyth, op. cit., p. 527; Jackson, op.cit.p. 137. Megarry, J. in John u. Rees, (supra), followed withapproval by this Court in Ramamoorthy and Rameshwaranv.Douglas Deuana and others,1271, and in Gamini Dissanayakev.M.C.M. Kaleel and Others, (supra), observed as follows :
“When something is obvious, it may be said, ‘why forceeverybody to go through the tiresome waste of time involved inframing charges and giving an opportunity to be heard? Theresult is obvious from the start.’ Those who take this view donot, I think, do themselves justice. As everybody who hasanything to do with the law well knows, the path of the law isstrewn with examples of open and shut cases which, some-how, were not; of unanswerable charges which, in the event,were completely answered; of inexplicable conduct which wasfully explained; of fixed and unalterable determinations that,by discussion, suffered a change.”
The matters before us, could hardly be described as “openand shut” cases. I am in agreement with learned counsel forthe respondents that this Court should not act in vain andwaste its time by insisting on useless formalities. Yet in thesematters the Court was not concerned with useless formalities.
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For instance, The only charge Dr. Amunugama had beencalled upon to answer was, as we have seen, that he had madestatements to the press about the formation of a nationalgovernment. However, he was expelled on other grounds.
Mr. Bandara, the petitioner in (E) 08/99 states that he didgo to the official residence of the President, but that his visitwas brief – because he had to be in the Court of Appeal – andthat his participation was limited to answering a call to explorethe possibility of the formation of a national government ratherthan supporting a rival candidate.
Certain petitioners reject some of the newspaper reportsas not being attributable to them. Other petitioners lay stresson the need to have a national, rather than a partisanapproach, to questions of national significance. Mr. Pelpoladescribed the national government idea as a “hoax”, a “cam-ouflage”, disguising the real intention of the petitioners, namely,to oppose the candidate nominated by the U.N.P. However, thestated grounds of dismissal were two separate charges, namely,that (]) at a meeting with President Chandrika BandaranaikeKumaratunga and several of her party colleagues, the petition-ers had signified their intentions and willingness .to supportthe President who was a rival candidate to the leader of theU.N.P., Mr. Ranil Wickramasinghe; and (2) that the petitionershad “participated in discussion of policy issues such as theformation of a national government without prior discussionor mandate of the Party.”
What was the truth? The petitioners claim they hadsomething to say with regard to their meeting the rivalcandidate and even supporting her on the question of anational government. The flawed decisions may or may nothave necessarily been the same had the petitioners beenheard. Perhaps, after hearing the petitioners fairly, therespondents may have concluded that all that talk about anational government was a sham, and the result may havebeen the same. Yet, in my view, that decision was not arrived
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at fairly and must therefore be set aside. Lord Wright said inGeneral Medical Council v. Spackman. (supra)-, Cf.Anamunthundo v. Oilfields Workers Trade Union!281. “If theprinciples of natural justice are violated in respect of anydecision, it is indeed immaterial whether the same decisionwould have been arrived at in the absence of the essentialprinciples of justice. The decision must be declared to be nodecision.” I must make it clear that I am not in the process ofsubstituting my opinion for that of the Working Committee oftheU.N.P. It is not for me to do so. E.g. see per Lord Hailshamin Chief Constable of Police v. Evans,1201; see also per LordBrightaman, 1 173. See also John v. Rees,(supra): Rv. Secre-tary of State for the Environment ex p. Brent L.B.C.!301: R v.Secretary of Stale for Education, ex p. Prior!3'1 per Brooke. J.
If the petitioners deserved to be expelled, and justice hadbeen done, in making their decision, was justice also seen tobe done? The petitioners complain that the principles ofnatural justice have been violated. Natural justice is notalways or entirely about the fact or substance of fairness. Ithas also something to do with the appearance of fairness.De Smith, Woolf & Jowell, op. cit., p. 500. Public confidence inthe settlement of disputes requires that even in so called “openand shut” cases the principles of natural justice must beobserved so as to ensure not only that justice was done butalso, to use the time hallowed phrase used by Lord Hewart C.J.in R. v. Sussex JJ., ex p. McCarthy!321, that it should be“manifestly and undoubtedly be seen to be done.” See alsoperDonaldson, J. in Altco Ltd. v. Sutherland!331.
Lord Widgery C.J. in R. v. Thames Magistrates' Court, exp.Polemis, (supra), 1375, said: “It is again absolutely basic to oursystem that justice must not only be done but must manifestlybe seen to be done. Ifjustice was so clearly not seen to be done,as on the afternoon in question here, it seems to me that it isno answer to the applicant to say: ‘Well, even if the case hadbeen properly conducted, the result would have been thesame.’That is mixing up doing justice with seeing that justiceis done.” Lawton L.J. in Maxiuell v. Department of Trade,1341
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said: “Doing what is right may still result in unfairness if it isdone in the wrong way.”
The U.N.P. is a major political party. The General Secre-tary of the Party was quoted as stating that it was a “disciplinedparty.” In the handling of these matters, it would not, in myview, have been an useless exercise to have adhered to theprinciples of natural justice for the sake of preserving publicconfidence. In discussing the justifications for requiring ahearing even where there appears to be no answer to a charge,Jackson, op. cil. p. 137, observed that “suspicion is inevitablethat a body which refuses a hearing before acting does sobecause of the lack of evidence not because of its strength.”
Learned counsel for the petitioners pointed out that someof the newspaper reports that were produced at the inquirybefore the Court implicated some, but not the other petition-ers. Some reports attributed certain statements to certainpetitioners but not the others. Moreover, some of the state-ments were ambiguous, and others had to understood in thecontext of the endeavour to forge a national consensus onmatters of general, public concern. Further, there werereports of things that were not told to the reporters but weresupposed to have been said to other persons. In the circum-stances, a fair healing would have been useful to ascertain thetruth and to apportion blame fairly and enable the Committeeto impose appropriate sanctions. Indeed the petitioners intheir petitions stated that the sanction of expulsion was“excessive and totally disproportionate” to their conduct.
The respondents case was that the petitioners were all inthis thing together, acting collectively with one purpose inmind, namely to oppose the U.N.P. candidate and support hisrival at the election. There was a repudiation of the conditionsof their membership. Their conduct was tantamount tocrossing the floor of the House and joining the ranks of theother side. Their statements and conduct reduced the peti-tioners to being caught as it were in Jlagrcmte delicto and therewas therefore no need for further inquiry.
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The petitioners may have been guilty of grave misconduct;but as Stephenson J. pointed out in Fullbrook v. BerkshireMagistrates' Courts Committee!3S ‘There are, after all, degreesof grave misconduct and explanations if not excuses for it."
In Ridgev. Baldwin, (supra) it had been decided by the trialjudge that the Chief Constable had no right to be heard by theWatch Committee since “out of the Chief Constable’s ownmouth at the Central Criminal Court, for the purposes of histrial, for all the world as well as the Watch Committee to hear,the plaintiff convicted himself of unfitness to hold the office ofChief Constable.” The House of Lords, reversed the trial judgeon this point because, even if the Chief Constable could nothave hoped in the disciplinary proceedings to persuade theWatch Committee that he ought to be allowed to continue inhis position, the committee had open to it a number of coursesand, if they had heard the Chief Constable, might havefollowed the most lenient course.”
In the matters before me, in my view, the hearing wouldnot have been a useless formality, for the Working Committeehad a choice of sanction. It was quite unlikeScott v. AberdeenCorporation,t36>, where there was a statutory duty to dismissthe person. In that case Scott argued that the Corporation,although under a statutory duty to dismiss him, had anobligation to give him a hearing before doing so. Lord Aronsideat p. 147 in rejecting that claim, said: “It cannot be a denial of‘natural justice’ to refuse a man the right to attempt topersuade those entrusted with the administration of substan-tive law to breach the law which it is their duty to uphold.”
The respondents submitted that the rules of naturaljustice were in the circumstances of the case excluded bypractical considerations. The election campaign was on andit was imperative that the cohesiveness of the party wassafeguarded. The petitioners were not only expressing theiropen support for the rival candidate, they were also attemptingto persuade others at grass roots level to vote against the party.Immediate action was called for.
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Urgency has, In certain circumstances, been regarded aspermitting a departure from the need to give a hearing beforeaction is taken. For instance, the right to a fair hearing mayhave to yield to overriding considerations of national security.Council of CivilService Unions v. Ministerjor the Civil Service,071.The right may also have to yield to considerations of publichealth or safety. Obviously, a hearing cannot be held aboutwhether a fire brigade, in the course of a fire, should destroya building. De Smith, Woolf & Jowell, op. cit., p. 375. A publicauthority may need to seize and destroy bad meat exposed forsale or to order the removal to hospital of a person with aninfectious disease without a hearing. In general, whether theneed for urgent action outweighs the importance of notifyingand hearing an affected party is a matter on which opinionsmay differ. However, having regard to the decisions in whichurgency has been held to be a defence, (E.g. see de Smith,Woolf & Jowell, op. cit pp. 482 – 488, Wade & Forsyth, op.ctt.,519 – 520 and 570 etseq.) 1 am of the view that the respondentshave failed to establish that the expulsion fell within thecategory of extraordinary, urgent circumstances recognizedby courts of law.
The content of fair procedures is flexible. As Lord Bridgehas put it: “the so-called rules of natural justice are notengraved on tablets of stone." Lloyd v. McMahon,1381. ‘Theprinciples of fairness are not to be applied by rote in everysituation. What fairness demands depends on the context ofthe decision". Lord Mustill in R v. Secretary of State for theHome Department, exp. Doodyfsupra). Admittedly, the oppor-tunity of a fair hearing may have been limited in the circum-stances. For instance, the time for responding to a chargesheet, or making submissions may have had to be reduced.Yet, the petitioners were entitled to be told what they werecharged with and afforded some opportunity of explainingthemselves. The petitioners were Members of Parliament andexpulsion could have led to losing their seats. The very gravityof the matter required that at least a limited hearing was givento the petitioners before a decision was taken to expel them.
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Lord Upjohn in Durayappah v. Fernando,1301, observed that. . while great urgency may rightly limit such opportunitytimeously, perhaps severely, there can never be a denial of thatopportunity if the principles of natural justice are applicable.”Although the need to act swiftly may modify or limit whatnatural justice requires, it must not to be thought thatbecause rough, swift or imperfect justice only is available thatthere ought to be no justice' : Pratt v. Wanganui EducationBoard,1401 per Somers, J."; Jackson op. cit., p. 136.
The summary dismissals were intrinsically unfair eventhough they may have been fully justified: Cf. Earlv. Slater andWheeler (Airlyne)Ltd.,1411. In my view, there was nojustificationfor the failure of the respondents to observe the principles ofnatural justice and grant the petitioners a hearing before theywere expelled. I therefore determine that the expulsions of thepetitioners were void and of no force or effect in law andtherefore, for the purposes of Article 99( 13)(a) of the Constitu-tion, invalid.
Mr. Aziz submitted that, if the Court determines that theexpulsions were invalid because of the failure to observe therules of natural justice, it was obliged to decide whether on themerits the expulsions were valid. He relied principally oncertain observations of Fernando, J. in Gamin i Dissanayakev.Kaleel and Others, (supra). In that case, it was admitted thatthe petitioners were neither informed of the allegations and theevidence against them, nor afforded an opportunity (i) tosubmit an explanation (ii) to be heard in their defence or (iii) tomake any submissions on the law and the facts, as to whethermisconduct warranting disciplinary action had been proved,and, if so, whether a lesser penalty than expulsion wasnecessaiy. Therefore there was a violation of the audi alterampartem rule.
However, Fernando, J. at p. 198 stated as follows: "Ourjurisdiction under Article 99(13)(a) is not a form of judicialreview, or even appeal, but rather an original jurisdiction
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analagous to an action for a declaration, though it is clearly nota re-hearing. Are we concerned only with the decision-makingprocess, or must we also look at the decision itself to decidewhether the expulsion was valid or invalid . . . Had theseproceedings been purely by way of judicial review, it may wellbe that we would have to shut our eyes to the merits of thedecision, and look only at the decision making process . .Fernando, J. went on to hold that the expulsion of six of thepetitioners was invalid but that the expulsion of two of themwas valid. In the same case, the majority held that theexpulsions of all the petitioners were valid.
Kulatunga, J. (with whom Wadugodapitiya, J. agreed)stated at p. 242 that “since the petitioners had not beenprepared to submit themselves to the party councils, then,there is no force in their complaint that the Working Commit-tee had failed to give them a hearing. I hold that the WorkingCommittee acted fairly and reasonably in taking disciplinaryproceedings against the petitioners in the way it did.
Kulatunga, J. went into the merits of the case andconcluded at p. 246 that “the remedy of expulsion befits themischief unleashed by the petitioners”.
However, Kulatunga, J. seems to suggest that it is not ineveiy case that the Court should go into the merits. At p. 234His Lordship said: 'The right of a M.P. to relief under Article99(13)(a) is a legal right and forms part of his constitutionalrights as a M.P. If his complaint is that he has been expelledfrom (lie membership of his party in breach of the rules ofnatural justice, he will ordinarily be entitled to relief; and thisCourt may not determine such expulsion to be valid unlessthere are overwhelming reasons wairanting such decision.Such decision would be competent only in the most excep-tional circumstances permitted by law and in furtherance ofthe public good the need for which should be beyond doubt."If there is any doubt about such matters, “the expulsion willbe shuck down.”
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In Tilak Karunanaratne v. Mrs. Sirimauo Bandarcmaikeand Others,1421, the petitioner, a Member of Parliament, wasexpelled from his party on a decision of the Executive Commit-tee of the party to which he refused to submit. He challengedhis expulsion in terms of Article 99(13) (a) of the Constitution.Dheeraratne, J. at p. 115 stated that, in view of the conclusionHis Lordship had reached, namely that “the petitioner's im-pugned statements are justified” in that he was exercising hisConstitutional rights of freedom of speech and association, itwas “unnecessary” to deal with certain questions, including a“failure to observe principles of natural justice in the decisionmaking process." Dheeraratne, J. (Wijetunga, J. agreeing)held that the expulsion of the petitioner was invalid.Dheeraratne J. said at pp. 101-102 that Article 99(13)(a)conferred an original jurisdiction on the Court empowering itto go into the merits and shield Members of Parliament frombeing “unlawfully and/or capriciously” expelled from theirparties. His Lordship did not accept the submission of learnedcounsel, Mr. H.L. de Silva, P.C., that investigations by theCourt should be restricted to the question whether properprocedures had been followed, lest judges might find them-selves wandering into the "political thicket", and cited withapproval the observations of Fernando, J. quoted above inDissanayake on that question. In Karunanayake, (supra),Ramanathan, J. at p. 117, rejected the proposition that thebusiness of the Court in the exercise of its jurisdiction underArticle 99( 13)(a) of the Constitution extends to deciding whetheran expulsion is right or wrong after deciding whether a fairprocedure had been followed.
In Ramamoorthy’s case, (supra), the Court (G.P.S. deSilva, C.J., Wijetunga and Shirani Bandaranayake, JJ.) didnot refer to the observations of Fernando, J. in Dissanayake,but held that the expulsions were invalid, without going intothe merits of the decision that was challenged, quoting withapproval the observations of Kulatunga, J. in Dissanayakereferred to above. The Court at p. 287 held that the "weightyconsiderations" in Dissanayake did not exist in the matter
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before them and therefore “strict compliance with the audialeram partem rule was a precondition to a valid expulsionfrom the party.”
In Premaratne v. Srimani Athulathmudali and Others,(supra), the Court (Amerasinghe, Wadugodapitiya, and S.N.Silva, JJ) held that the expulsion was invalid and did notproceed to decide on the reasonableness or rationality of thedecision.
Assuming without deciding that 1 may go into the qualityof the decision, I would not do so in this case for at least threereasons: (1) The evidence is incomplete; the respondents havenot furnished the Court with the evidence relating to the radioand television broadcasts they relied on for their decision; Norwere the reports said to have been tabled at the meeting of theWorking Committee identified, if they were among the reportstabled at this inquiry; (2) unlike Dissanayake (see pp. 142 and242) the facts in the matters before me are in dispute; (3) thereare no “weighty considerations” which compel me to advancebeyond the realm of procedural justice, and therefore I shouldfollow the course of action suggested by Kulatunga, J. inDissanayake and taken by the Court in Ramamoorthy. I holdthe decision to expel the petitioners invalid for want of proce-dural propriety.
For the purposes of Article 99( 13) (a) of the Constitution,for the reasons given in my judgment, I determine that theexpulsions by the respondents of Sarath Amunugama, NandaMathew, Wijayapala Mendis, Susil Kumar Moonesinghe andR.M.R. Chula Bandara were invalid.
In all the circumstances, I make no order as to costs.BAND ARAN AYAKE, J. – I agree.
ISMAIL, J.- I agree.
Expulsions of the petitioners from the party determined invalid.