Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
were based on that statement admittedly made by him to “Lakdiva". He wasexpelled from the party on a decision taken by the executive committee on 2.6.93after a disciplinary inquiry to which he refused to submit. Petitioner challengedhis expulsion in terms of Article 99 (13) (a) of the Constitution.
Held: (Ramanathan J. dissenting)
Jurisdiction of the Supreme Court in terms of the proviso to Article 99 (13)(A) is wide ; it is an original jurisdiction on which no limitations are placed. Indeciding whether the expulsion of a Member of Parliament was valid or invalidsome consideration of the merits is obviously required.
Regarding the competence of the expelling authority to expel the petitioner,it is sufficient if it had the de facto power to expel. The de facto doctrine isbased on public policy and necessity ; it is a pragmatic doctrine designed toavoid endless confusion and needless chaos resulting from legality of the expellingauthority being successfully challenged in collateral proceedings.
A political party is a voluntary association and its members are boundtogether by a contract which is usually the party constitution from which arisescontractual obligations of the membership. These obligations are either expressor implied. Article 14 (1) (c) of the Constitution guarantees to every citizen thefreedom of association. Freedom of association places a voluntary self-limitationon the freedom of speech and expression guaranteed under Article 14 (1) (a)and that self-limitation is the foundation of the freedom of association. Petitionertook every possible step within the party fora to persuade the party leadershipto hold elections in terms of the party constitution and when his persistent pleasbrought no results, in the interest of the party he spoke to the media. In thosecircumstances the impugned statement made by the petitioner to "Lakdiva" isjustified as having been made in the exercise of his freedom of speech andexpression guaranteed under the Constitution. The expulsion of the petitioner istherefore invalid.
Cases referred to :
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947]2 All ER 680 ; [1948] 1 KB 223.
Dawkins v. Antrobus (1879) 17 Ch D 615 [1881-51] All ER Rep. 126;(1881) 44 LT 557.
Richardson – Gardner v. Freemantle (1871) 24 LT 81.
Maclean v. Workers Union and Others (1929) 141 Law Times 83 ; [1929]1Ch. 602.
Hopkinson v. Marquis of Exeter (1867) LR 5 Eq. 63 ; (1867) 37 LJ Ch.173.
Hamlet v. General Municipal Boilermakers and Allied Trade Union [1987)1All ER 631.
Dissanayake and Others v. Kaleel and Others – SC (Spl) 4-11/91 – SCMins of 03-12-1991.
Sri Lanka Law Reports
[1993] 2 Sri LR.
Parameswaran Pillai Bashkaran Pillai and another v. State Prosecutor AIR1951 Travencore – Cochin 45.
P. S. Menon v. State of Kerala and Others AIR (1970) Kerala 165.
Immedisetti Ramakrishnaiah Sons, Anakapalli and Others v. State ofAndraPradesh and another AIR (1976) Andra Pradesh 193.
Gokaraju Ranagaraju v. State of Andra Pradesh AIR (1981) SC 1473.
Adams v. Adams [1971] WLR 188.
In re James [1977] 2 WLR 1; [1977] Ch 41.
Extein Norton v. Selby County, State of Tennesse (1886) 118 U. S. Lawyers'Ed. Book 30 page 178.
In re K. Stephen Perera et al 68 NLR 332.
Yapa Abeywardena v. Harsha Abeywardene and another SC 51/87 (Spl).
Scading v. Lorant (1851) 3 HLC 418, 447.
Jayatilleke v. Kaleel SC Nos. 1 and 2/92 – SC Minutes of 28-02-1992.
APPLICATION challenging expulsion from political party.
D. S. Wijesinghe, PC with Maxie Bastiansz, S. Mahenthiran, Nihal Fernando,A. M. Jiffery, Maithree Gunaratne with K. Sivanathan and Preethikumari Arachchigeof Sivanathan and Associates for Petitioner.
H. L. de Silva, PC with Nihal Jayamanne, Anandalal Nanayakkara andMs. N. Amerasinghe for the 1st to 4th, 11th, 13th, 14th, 17th to 20th, 23rd,27 to 36 respondents.
Manohara R. de Silva for 5th, 8th to 10th, 22nd and 26th respondents.
A. K. Premadasa, PC with G. H. S. Suraweera and C. E. de Silva for 16threspondent. No appearance for 6th, 7th, 12th, 15th, 21st, 24th, 25th and 37threspondents.
Cur. adv. vult.
April 27, 1993.
Petitioner is a Member of Parliament belonging to the Sri LankaFreedom Party (SLFP), duly elected at the general election held in1989, to represent the Kalutara District. 1st, 2nd and 3rd respondentsare President, General Secretary and Treasurer of the SLFPrespectively ; 4th to 8th respondents are Vice Presidents while 9thand 10th respondents are Assistant Secretaries; 1st to 30threspondents are members of the Central Committee ; and 31st to35th respondents are members of the Disciplinary Committee. 36threspondent is the party itself – a recognized political party within the
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
meaning of the Parliamentary Elections Act No 1 of 1981. 37threspondent is the Secretary-General of Parliament who is addedas a party purely for the purpose of giving him notice of thisapplication. Petitioner was expelled from the SLFP consequent to adecision taken by the Central Committee on 2.6.93 and the 2ndrespondent, General Secretary of the party by his letter dated 3.6.93(P40) informed him of his expulsion. On 30.6.93 petitioner filed thisapplication in terms of Article 99 (13) (a) for a determination by thiscourt that his expulsion from the SLFP is invalid. The partiesrepresented by Mr. H. L. de Silva, PC. and Mr. A. K. Premadasa,PC. have joined issue with the petitioner; while Mr. Manohara deSilva on behalf of his clients submitted to court that he supports theposition taken up by the petitioner.
Sometime prior to 6.9.92, as evidenced by the report in the" Island “ newspaper of that date (P22) under the title " SLFPleadership under challenge ", the petitioner, when interviewed by themedia expressed views advocating a change in the leadership of theSLFP which he called the " old guard " and for holding of electionsof office bearers, which elections he claimed had not been held forseveral years. By letter dated 16.10.92 (P23) the 1st respondentacting in terms of Rule 14 (7) of the party constitution (P1) suspendedthe petitioner from membership of the party. By that letter petitionerwas also informed'that a disciplinary inquiry will be held against himfor conducting himself " not in keeping with the constitution and indisregard of discipline ". The statements made to the media by the1st respondent P24 and P25 and the letter sent by the petitionerto the 1st respondent on 23.10.92 (P25 A) indicate that sometimeearlier, the petitioner had voiced similar views to those contained inP22 to the BBC. Petitioner was prepared to withdraw the allegedlyoffending statements if the 1st respondent was prepared to give hima firm undertaking to withdraw the suspension. By letter P25 A thepetitioner so informed the 1st respondent. No charge sheet wasserved and no inquiry was held in respect of the statements issuedby petitioner to the media and his suspension from membership ofthe SLFP continued unrevoked.
In January 93, the petitioner while under suspension from his partywas interviewed by a journalist attached to the newspaper called“ Lakdiva " and excerpts of that interview were published in the
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[1993] 2Sri L.R.
" Lakdiva " issue of 24.1.93 (P26). By letter dated 3.2.93 (P27) 2ndrespondent drew petitioner's attention to certain excerpts from thepetitioner's statement to " Lakdiva " and alleged that he had actedin gross violation of the constitution and discipline of the party. Theletter further notified petitioner to show cause why disciplinary actionshould not be taken against him. Petitioner replied P27 by his letterdated 17.2.93 (P28). Petitioner was informed thereafter by the 2ndrespondent to be present at an inquiry to be held by the DisciplinaryCommittee of the party on 29.3.93. Petitioner by letter dated 24.3.93(P30) addressed to the 2nd respondent objected to 3 particularmembers of the Disciplinary Committee inquiring into his matter onthe ground of their being biased. He stated that an impartial inquirycould be held if the committee is composed of any 5 out of 17persons named by him ; 2 members already in the DisciplinaryCommittee were included by him in this list of 17. Petitioner wantedto know in advance the names of the members of the DisciplinaryCommittee and he further asked for a postponement of the inquiryto a date after the Sinhala New Year. 2nd respondent wrote to thepetitioner letter dated 2.4.93 (P34) to say that although the DisciplinaryCommittee met on 29.3.93, no inquiry could be held due to theabsence of the petitioner and that in order to give him anotheropportunity to present his defence, the inquiry was refixed for 16.4.93.By letter dated 7.4.93 addressed to the 2nd respondent, petitionerasked for an adjournment of the inquiry fixed for the 16th ; one reasonfor his request as stated by him was that he was extremely busyover the Provincial Council elections. On 16.4.93 the DisciplinaryCommittee met but the petitioner was absent and a letter by himrequesting a postponement was handed over to the committee byhis lawyers. The committee acceded to that request and appointed
as the final date of hearing. On 22.5.93 petitioner did notappear before the committee and a medical certificate indicatingpetitioner's inability to attend due to his illness, was tendered on hisbehalf by Mr. S. L. Gunesekera, M.P. The inquiry was then refixedfor 1.6.93. On 28.5.93 petitioner wrote letter P38 to the Chairman/Member Disciplinary Board in which he alleged inter alia thatdisregarding his objection to some members of the DisciplinaryCommitee investigating the complaint against him on the ground ofbias, he was given to understand that those members were includedin the committee ; the Disciplinary Committee was not one dulyappointed under the SLFP constitution ; and that he was not obligedto submit himself to an inquiry by a Disciplinary Committee which
77lak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
was not impartial and which had been nominated by persons notvalidly holding office as members of the Central Committee of theSLFP.
On 31.5.93 petitioner filed action in the District Court seeking adeclaration inter alia that the 1st to 30th respondents were not dulyelected members of the Central Committee of the SLFP and furtherseeking an interim injunction restraining 1st to 30th respondents fromsubjecting the petitioner to a disciplinary inquiry. On 31.5.73 itself thelearned District Judge Colombo made order refusing an enjoiningorder restraining 1st to 30th respondents. The Disciplinary Committeemet on 1.6.93 and submitted its report. On the following day the reportwas considered by the Central Committee and a decision was takento expel the petitioner with immediate effect. This decision wascommunicated to the petitioner by letter P40 dated 3.6.93.
Allegations against the petitioner which culminated in his expulsionare contained in the show-cause letter P27 written by the 2ndrespondent in Sinhala. It is useful for the purpose of these proceedingsto set out in full an English translation of that document.
It has been reported to me that the following statements amongothers have been made by you as published under the caption" Dialogue " (debasa) in the Sunday 24th January 1993 issue of the" Lakdiva " volume 1 issue no. 2, which is a public news paperpublished and distributed in Sri Lanka.
" We call the SLFP a democratic party. We ask for a mandateto establish democracy in this country but there is no democracy inour party itself. A very dangerous type of dictatorship is prevailingin our party. This is the primary reason for this dispute ".
" There has been only one leadership in the SLFP for the last24 years. This is a thing that should never happen in a political partyworking under a democratic structure. However good may suchleader be, it is a gross injustice to the able and educated lot in thelower strata of the party who represent several generations and whoalways stagnate in the same position. Therefore, a non-stop pressurefrom the bottom to the top is inevitable.
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{1993] 2 Sri LR.
This is the main and primary reason for this dispute. It is anextraordinary thing if internal conflicts do not arise in a party like thisthat calls itself democratic. The simple answer that this is a fightbetween capitalism and socialism is not valid in fact."
" Had we not made this struggle, there would have been no roomfor the existence1 of any active politics in the SLFP by now. Whatnew thing have we given to the people? We have been stagnatingin the same place for a number of years. We cannot go forwardwithout creating such a change and innovation as this inside our party.
The progress and existence of the party rests in the victory ordefeat of the struggle we are carrying on for the establishment ofdemocracy. There are two camps in the party now. A party so dividedcannot March towards a specific goal.
No election of office bearers has been held in this party for thepast eight years. This alone clearly shows that the party leadershiphas accepted the position that it cannot win in a just election heldto elect office bearers.
If we are to challenge the anti-democratic and dictatorial leadershipof a political party like the UNP, we should first make ourselves strong.We should have a leadership that can guide us towards one goal.But when it is not so?"
" Administrative structures of all descriptions in this country arein the hands of the UNP. The UNP has been able to strengthen itspower in whatsoever manner in all political and administrative spheres.At a time when all these strengths are with him, I do not believethat President Premadasa will hold such a so called 'just' election.
I do not think that Premadasa can be defeated in a 'just' election.He will hold such elections as he can win.
Therefore, Premadasa can be defeated only through a true struggleby the people. Such cruel rulers like these could not be driven awaythrough democratic methods. If we are to chase Premadasa awayby any means we must have a true leadership for that purpose. Todaywhat we lack is only the necessary leadership. "
According to the copy of the letter dated 25.1.93 addressed byyou to the editor of the Sunday Observer annexed to the letter dated
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
sent to me by you, you have admitted that you madestatements to the said "Lakdiva" newspapers of 24.1.93.
I have to state that grave injury and damage has been causedto the Sri Lanka Freedom Party and to its activities as well as toits leadership by the publication of the aforesaid statements in the" Lakdiva " newspaper. Further these statements have caused thegeneral public to be discontended and dissapointed with the SLFPand its leadership and for the general public to hold them in contemptand disgrace.
If you have made the above mentioned statements while beinga member of the Sri Lanka Freedom Party as well as a Memberof Parliament of that party, they are seriously detrimental to theparty ; and it is a violation of its constitution and an act of gravemisconduct. It is also a matter of violation of party discipline.
For your easy perusal I am annexing hereto a copy of the fulldialogue as published in the said newspaper " Lakdiva " and youare hereby requested to show cause within 14 days of the receiptof these statements.
The charges were based on “ the aforesaid statements “ as pickedand chosen by the 2nd respondent and in my opinion they were sounderstood by the petitioner. Most candidly he admitted having madethose statements to " Lakdiva The explanation for his conduct, hepromptly offered within the stipulated time to the 2nd respondent byletter P28 which reads as follows :
I am in receipt of your letter dated 3rd February 1993 receivedby me on the 5th instant. I
I have been and am strongly of the view that –
There has to be due and proper elections within the party andprimarily for the Central Committee.
The party leader must be duly and properly elected.
It is not proper that one person should hold the leadership ofthe party for 34 years without being elected by the party.
That the ' Central Committee ' and/or the ' Office Bearers 'of the Party cannot property or lawfully function for so manyyears without a proper election.
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[1993] 2 Sri L.R.
These views, I have repeatedly expressed to prominent membersof the SLFP and have without ambiguity expressed these viewsto Mrs. Sirimavo Bandaranaike, MP, Mr. Anura Bandaranaike,MP, Mr. Dharmasiri Senanayake, MP, Mr. Kingsley Wickramaratne,MP, Mr. Mahinda Rajapakse, MP, amongst many others.
I have also expressed these views within the SLFP organizationsof my electorate and also at meetings of the SLFP ParliamentaryGroup. These are the views I would have expressed before the AllIsland Committee and the Executive Committee of the party had theybeen summoned. I was prevented from expressing my views evento these committees by reason of the fact that meetings thereof werenot summoned in breach of the imperative provisions of the PartyConstitution for several years.
I am not a member of any other commitee or organ of the SLFPand have no other forum (at present except SLFP organization inmy electorate) to express my views.
My efforts of communicating these views to the membership ofthe SLFP through Mrs. Sirimavo Bandaranaike, MP, Mr. AnuraBandaranaike, MP, Mr. Dharmasiri Senanayake, MP, Mr. KingsleyWickramaratne, MP and Mr. Mahinda Rajapakse, MP, have broughtno results. No dialogue was possible. No forum was given to mewithin the party to express my views to the membership of the party.My views were not placed for discussion at any forum of the SLFP.
On the other hand, I was suspended from the membership of theparty from on or about 16th October 1992 and no charges have yetbeen preferred. I was thus deliberatedly prevented from expressingmy views within the SLFP or having my views put up for discussionwithin the SLFP.
I am also a Member of Parliament elected from the Kalutara Districtas a member of the SLFP. In these circumstances, I have a dutyto bring to the notice of the membership of the SLFP and thesupporters of the SLFP my views.
In the circumstances set out above, the only manner in which Icould bring these matters to the notice of these persons was throughthe media.
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
The views expressed are political, fundamental and emanate frommy conscience. They are not in anyway directed personally againstanyone inclusive of Mrs. Sirimavo Bandaranaike, MP.
I stand by my views, specially taking into consideration theconstitution of the SLFP. I once again request that proper electionsbe held to the Central Committee and for the Party Leadership.
With regard to what was published in the " Lakdiva “ of 24.1.93,I was interviewed by Mr. Wimalasiri Gamlath of that publication. Iexpressed my views to him, but not all views expressed by me tohim were expected to be published. The only views expressed byme which I expected to be published concerned the lack of electionsto the Central Committee and to the Party Leadership.
I do not share the view that any harm has been caused to theparty or its leader by the publication you refer to in your letter tome. The party as you are aware is fighting for greater democracy.
I deny that I have acted against the party and/or acted in breachof party discipline in granting the interview.
I have always been a loyal Member of the SLFP and have notacted against the interests of the party, and will never act againstthe interest of the party because, among other things, it is selfdefeating. On the other hand I have always acted in the best interestof the SLFP and'of the Country.
In conclusion, I am constrained to say that I am surprised to havereceived your letter accusing me of a breach of party discipline bymaking the statements in question to " Lakdiva ". Several membersof the party including Mrs. Sirimavo Bandaranaike, MP, Mr. AnuraBandaranaike, MP, Mr. Stanley Thilakeratne, MP, Mr. NandimithraEkanayake, MP, Mr. S. B. Dissanayake, MP and Mrs. ChandrikaKumaranatunga have made statements extremely critical of the Partyand/or its members and such statements received wide publicity inthe press. However, no disciplinary action was at any time takenagainst any of them for making the said statements.
In the circumstances, I have been singled out for discriminatorytreatment and I cannot resist concluding that your letter has beenactuated by malice.
100Sri Lanka Law Reports[1993J 2SriL.R.
The Disciplinary Committee, as seen by the report 2R9 dated
6.93, was unanimous in arriving at the conclusion that the petitioner” (a) lowered the party and its leadership in the estimate of the generalpublic ; (b) brought the party and its leadership into disrepute and
contravened party discipline." The Central Committee memberssummoned by telephone met on 2.6.93 and according to the minutesof the meeting 2R10 among some other matters the report 2R9 wasconsidered. Majority of members numbering 18 voted for the expulsionof the petitioner, 4 voted against and 3 abstained.
Before commencement of the hearing, the broad grounds uponwhich petitioner relies to challenge his expulsion in these proceedings,were submitted to us in writing at our request, by learned President'sCounsel for the petitioner.
Those grounds are
Absence of jurisdiction in the Central Committee to expel himby reason of the averments in paragraphs 58 to 60 of the petition.The petitioner submits that it is not an answer for the principalrespondents to say that the petitioner had by his conduct impliedlywaived the right to challenge the jurisdiction of the Central Committee,for the reason that waiver necessarily implies knowledge of one'srights plus an election to abandon those rights. ’
Absence of jurisdiction in the Disciplinary Committee to holdthe inquiry against the petitioner by reason of its irregular appointment,the mala-fides prompting the appointment, and bias on the part ofsome members of the committee as averred in paragraphs 61 and41-43 of the petition. The petitioner also submits that the delegationof the power to appoint the members of the Disciplinary Committeeto the 1st respondent is ultra vires the constitution of the party.
That the party leadership could not have taken action to expelthe petitioner for granting the interview to the Lakdiva newspaperas it was held out to the membership that criticism of the partyleadership will not be considered a ground for disciplinary action.The conduct of the party leadership amounts to a waiver and/oracquiescence and/or estops them from taking disciplinary action againstthe petitioner.
Tilak Kanmaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
Even if there was a breach of discipline, the petitioner wasjustified in granting the interview which led to his expulsion by reasonof the unreasonable and unconstitutional stifling by the partyleadership of his undoubted right as a member of a voluntaryassociation to communicate and gain acceptence of his point of viewwith regard to a need for internal changes.
The expulsion was invalid by reason of malafides.
That having regard to the flagrant and contemptuous violationsof the fundamental provisions of the constitution by the partyleadership the constitution was for all practical purposes a dead letter.It is therefore not open to the purported Central Committee to invoke
the provisions of the selfsame constitution to justify the expulsion ofthe petitioner.
The expulsion is invalid by reason of the failure on the partof the Central Committee to comply with the principles of naturaljustice. The petitioner submits that the lack of due and proper notice,the undue haste, the failure to notice some of the members, the activeparticipation of the 1st respondent, the total lack of material beforethe Central Committee of the defence of the petitioner etc. vitiatedthe decision to expel the petitioner.
The nature of the jurisdiction conferred on the Supreme Court interms of the proviso to Article 99 (13) (a) is indeed unique incharacter ; it calls for a determination that expulsion of a Memberof Parliament from a recognized political party on whose nominationpaper his name appeared at the time of his becoming such Memberof Parliament, was valid or invalid. If the expulsion is determined tobe valid, the seat of the Member of Parliament becomes vacant. Itis this seriousness of the consequence of expulsion which hasprompted the framers of the Constitution to invest that unique originaljurisdiction in the highest court of the Island, so that a Member ofParliament may be amply shielded from being expelled from his ownparty unlawfully and/or capriciously. It is not disputed that this court'sjurisdiction includes, an investigation into the requisite competenceof the expelling authority ; an investigation as to whether the expellingauthority followed the procedure, if any, which was mandatory in
102 _Sr/ Lanka Law Reports^ _[1993] 2 Sri L.R.
nature ; an investigation as to whether there was breach of principlesof natural justice in the decision making process ; and an investigationas to whether in the event of grounds of expulsion being specifiedby way of charges at a domestic inquiry, the member was expelledon some other grounds which were not so specified. Mr. H. L. deSilva, PC. contended that the decision to expel the petitioner wasa political decision and therefore the criteria adopted for expulsionmay vary from case to case, person to person and time to time ;he reminded us of the words of caution of the great American ChiefJustice, Marshall that 'judges should not enter the political thicket'.He submitted that the jurisdiction of this court does not extend toan examination of the meritworthiness of the expulsion. It was submittedthat this court could interfere only if the decision of the expellingauthority was unreasonable in the 'Wednesbury sense' (AssociatedProvincial Picture Houses Ltd. v. Wednesbury Corporation (1) that is,if the decision is so unreasonable as to be irrational. Our attentionwas drawn to the following cases relating to expulsion of membersfrom voluntary associations Dawkins v. Antrobus (z) ; Richardson- Gardner v. Freemantle (3) ; Maclean v. Workers Union andOthers w ; and Hopkinson v. Marquis of Exetert5) where it was heldthat if exercise of the power of expulsion was made bona fide, thecourt should refrain from interfering. The case of Hamlet v. GeneralMunicipal Boilermakers and Allied Trade Union (6) was also citedwhere failure of the domestic tribunal to take into account matterswhich were relevant or taking into account matters which wereirrelevant, was held to be not falling within the scope of review bycourt.
Our jurisdiction appears to be wider; it is an original jurisdictionon which no limitations have been placed by Article 99 (13) (a).As stated by Fernando J. in Dissanayake and others v. Kaleel andothers P), " Our own jurisdiction under Article 99 (13) (a) is not aform of judicial review, or even of appeal, but rather an originaljurisdiction analogous to an action for declaration, though it is clearlynot a rehearing. Are we concerned only with the decision makingprocess, or must we also look at the decision itself? Article 99 (13)(a) required us to decide whether the expulsion was valid orinvalid ; some consideration of the merits is obviously required."
SCTitak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)103
At the apex of the SLFP hierarchy is the Central Committee, whichaccording to the party constitution P1, is its supreme body. It consistsof 3 component elements ; 12 members of the party elected by theExecutive Committee ; not more than 11 representatives appointedby the President of the party from among the members of theExecutive Commitee ; and not more than 10 Members of Parliament(Rule 13). The constitution is silent as to how these Members ofParliament are to be picked, but it is reasonable to assume that itimplies that they are to be elected from among themselves and arenot to be chosen by the President of the party. The Central Committeehas the power to appoint a Disciplinary Committee comprised of 5members and to determine powers and functions of the latter body(Rule 15). Where the General Secretary is convinced that anymember of the party has contravened the party policies or has violatedparty discipline, he has the power to call for explanation from suchmember and submit a report to the Disciplinary Committee for action.Disciplinary Committee is then empowered to hold an inquiry andconvey its decision to the Central Committee. The Central Committeeis vested with the power to consider the report and determine thecourse of action to be taken against the errant member (Rule 14iv). Independently, the President of the party has the power tosuspend a member from his membership (Rule 14 vii).
Petitioner contends that the Central Committee which expelled himwas not lawfully constituted or was functus inasmuch as no annualelections have been held, as the constitution requires, to elect officebearers either of the Central Committee or of the Executive Committeesince 1986. The fact that no elections have been held for those bodiessince 30th January 1986 was admitted by the respondents. Rule 28of the party constitution provides that elections of all organizationsset out in the constitution shall be held annually or within the periodas may be determined by the Central Committee. It is pointed outthat the Central Committee never gave its mind to that matter in orderto make a determination as to any such period ; if there was anysuch decision the contesting respondents failed to produce the minutesof such a determination. It is also pointed out by learned counselfor petitioner that Rule 31 of the party constitution, which makesprovision for office bearers already holding office to continue tofunction until new office bearers are elected for any year, cannot cure
Sri Lanka Law Reports
[1993] 2 Sri L.R.
the irregularity of not holding elections for 7 long years. He is rightin that submission.
Counsel for the petitioner further contended that the CentralCommittee was not a lawfully constituted body for the followingreasons
Appointment of 10th respondent who is a Member ofParliament, by letter dated 5.11.88 (P47) by the 1st respondent, alsoappointing him to the post of Assistant Secretary of the CentralCommittee by the same letter.
Appointment of 16th—19th respondents who are Members ofParliament by the 1st respondent on 2.7.91.
21st-27th respondents who were elected to office in 1986 byvirtue of their being Members of Parliament, ceased to be Membersof the then Parliament on its dissolution on 20.12.88 ; they were notre-elected to the Central Committee after they were elected asMembers of Parliament subsequently.
29th and 30th respondents who are presently Members ofParliament were appointed by the Central Committee, although on20.10.92, the SLFP parliamentary group unanimously decided toappoint two other Members of Parliament.
25th respondent who was an elected Member of Parliament,resigned his seat on or about 7.4.93, yet continues to function asa member of the Central Committee.
20th respondent was appointed in or about October 92 by the1st respondent. She was not a member of the Executive Committeeat the time of her appointment.
Mr. H. L. de Silva, PC. submits that the validity of the compositionof the Central Committee cannot be attacked in these proceedingswhich are collateral and such challenge should be appropriately madedirectly in a court of competent jurisdiction empowered to grant adeclaratory decree. He invited this court to proceed on the basis thatmembers of the Central Committee have acted under colour of theiroffice and submitted that all acts done by the Central Committee are
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
legally valid, until the composition of the Central Committee is declaredto be invalid in an appropriate declaratory action. It was contendedthat the de facto doctrine gave validity to acts of persons who heldoffice at the relevant time of making the impugned decision and thatthe members of the Central Committee were not total usurpers.Reliance was placed in support of the de facto doctrine on the dictaexpressed in the following cases Parameswarart Pillai BashkaranPillai and another v. State Prosecutor (8> ; P. S. Menon v. State ofKerala and others 191 ; Immedisetti Ramakrishnaiah Sons, Anakapalliand others v. State of Andra Pradesh and another(10) ; GokarajuRangaraju v. State of Andra Pradesh (11> ; Adams v. Adams (12) ;In Re James (13) ; Extern Norton v. Selby County, State ofTennessee (,,,) ; and In Re K. Stephen Perera et al |,5).
The de facto doctrine is based on public policy and necessity ;it is a pragmatic doctrine designed to avoid " endless confusion andneedless chaos 11 resulting from the legality of appointments beingsuccessfully challenged in collateral proceedings. Learned counsel forthe petitioner submitted that this doctrine cannot be applied to thefacts of the present case, because the members of the CentralCommittee, far from having acted bona fide in the interest of the publicor third persons, have acted for their own benefit. There is no materialbefore us to determine that the Central Committee members actedfor their own benefit. It was further contended by Mr. Wijesinghe,PC, that none of the cases cited in support of the de facto doctrinedeal with instances* of domestic bodies, but they all deal with statutorytribunals or officials created by law. I see no reason for this courtnot to be guided by the same principle in considering the authorityof the Central Committee which appears to have had numerousdealings in running the party with the general public and institutionscreated by law. I cannot overlook the fact that the SLFP is a major• political party in this country which has held the reins of power onseveral occasions since its birth in 1951 and which now forms thelargest parliamentary group in the opposition. 1st respondent as leaderof the party, as its constitution provides, has appointed a large numberof electoral organizers ; and 2nd respondent as General Secretary,has performed and has to perform numerous obligations accordingto law, particularly in relation to the nomination lists of the partymembers to Parliamentary, Provincial Councils’ and Local Authorities’elections. Any pronouncement by us on the legality of the appointmentof the office bearers of the Central Committee in these proceedings,
Sri Lanka Law Reports
[1993] 2 Sri L.R.
is bound, in my opinion, to create endless confusion and needlesschaos in the enormous party organization and in its dealings withthe general public and public authorities. For these reasons I woulddecline to extend our jurisdiction in these proceedings to what maybe directly done by a court of competent jurisdiction in an appropriatedeclaratory action. In view of our decision on this aspect of the matter,we would refrain from addressing our minds to the further questionas to whether the petitioner, by his conduct, has impliedly waivedthe right to challenge the jurisdiction of the Central Committee onthe principle that a person may not approbate and reprobate. I willproceed to examine the petitioner's case on the basis that themembers of the Central Committee of the SLFP, acting under colourof their office and in the ostensible discharge of their duties, hadthe competence de facto to expel him.
The constitution of the SLFP-P1 is prefaced with a statement of itspolicies which reads as follows
The basic principle of the SLFP is Democratic Socialism. Namely,the middle path. There are a host of various individual and collectivefreedoms which constitute the basic principles of DemocraticSocialism. We consider them to be essential features of a freedemocracy. We treat freedom of thought, freedom of expression,freedom of assembly, freedom to manifest one's religion, franchiseetc. to be the freedom of the individual. We treat the freedomfrom want, fear, illiteracy and illhealth as collective freedoms.Government by a parliament elected with the free vote of thepeople, efficiency and impartiality of the government machinery,and the independence of the judiciary are considered by us tobe the basic principles of democracy.
We recognize the concentration of the entire effort of the statefor the welfare of the people, providing equal opportunity for allcitizens, and the creation of a classless society as the fundamentalfeatures of socialism.
It is our conviction that, on the one hand, the journey towardssocialism under a democratic institution, for the creation ofa democratic society runs counter to dictatorship, and is achieved
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
without compulsion and in keeping with the wishes of the people,and that on the other hand, the privileges enjoyed by a smallsection of society, as a consequence of democratic capitalismneeds control.
It is our view, that a third feature, namely, the religious andcultural resuscitation should be incorporated into the aforesaid twofold social democratic principles.
Rule 26 of the SLFP constitution spells out the rights and dutiesof members as follows
It shall be binding on all members to adhere to all party policiesand decisions of the party and to take steps in furtherance of theobjects of the party and to popularize the party among the people.
Every member is required to comply with the rules andregulations of the party and should conduct himself in a disciplinedmanner.
It shall be the duty of every member to assist and support thecandidates nominated by the party in all elections.
We are informed’that a code of conduct for Members of Parliament,Provincial Councillors and Members of Local Authorities has beenagreed upon by the Central Committee of the SLFP on 19.7.93, asevidenced by P62, after this application was filed. No rules orregulations appear to have been made pertaining to discipline. Nonewas cited before us.
The petitioner became a member of the SLFP in or about 1982 andwas appointed the chief organizer of the Bandaragama electoraldivision of the Kalutara District in 1984. On 18.11.88 he wroteconfidential letter P3 to the 1st respondent urging that immediateremedial action be taken in organizing party activity in the KalutaraDistrict, if the 1st respondent, who was the SLFP candidate for the
Sri Lanka Law Reports
[1993] 2 Sri L.R.
presidential election at that time, were to secure the maximum numberof votes in that district. At the general election held in 1989, he waselected Member of Parliament for the Kalutara District from his party,receiving the highest number of preferential votes in the district. Atseveral SLFP parliamentary group meetings held after the petitionerwas elected to parliament, he urged the need for democratising theparty and the necessity to hold party elections. The petitioner allegesthat in the latter part of 1990, he had a long conversation with the1st respondent at her residence, in the course of which he suggestedthat she steps down from the leadership of the party in order toresurrect the party from the sorry plight it had fallen into by that time.1st respondent admitted some conversation with the petitioner, butstated that the petitioner told her that she should think more of theparty than of her children ; she denied that a suggestion was madeby the petitioner to step down from the leadership. On 6.6.89 thepetitioner received a circular letter from the 8th respondent who wasthe then General Secretary of the party, addressed to all Membersof Parliament of the SLFP, requesting them to submit proposals forthe party's further course of action and revision of its policies. Thepetitioner sent his proposals on 29.6.89 (P4) in response. Severalproposals in P4 dealt with democratisation of the party structure, theconstitution and party policies. In response to a circular letter dated
(P5) from the 8th respondent as General Secretary of theparty, the petitioner forwarded resolutions (P6A) passed by theBandaragama electoral area organization, some of which urgeddemocratisation of the party constitution. On 30*3.90 the petitionerwas appointed by the Central Committee to a committee comprisingof 10 members of the parliamentary group chaired by the 25threspondent to consider ways and means of strengthening the partyorganization. The petitioner by letter dated 2.4.90 (P7) submitted tothe 25th respondent his proposals for consideration of the committee.Proposals in P4 included amendment of the SLFP constitutionto make it more democratic and broad based and the urgent necessityfor holding elections of all party organizations. Again on 20.9.90, the9th respondent as General Secretary wrote to all Members of Parliamentof the SLFP calling for proposals for the formation of the futureprogramme of the party. The petitioner in response, by his letter dated
(P10) pointed out to the 9th respondent that sending anyproposals was a wastage of his time and energy, as the proposalssent by him on earlier occasions did not appear to him to havebeen subjected to any consideration by the leaders of the party.
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
On 11.11.90 the Central committee appointed a 4 member committeeto consider proposals to reorganize the party and for settling intra-party disputes which had surfaced at that time. By letter dated
(P11) the petitioner wrote to the 22nd respondent who wasa member of that committee, setting out his proposals for the con-sideration of the committee. In P11 the petitioner among other mattersstrongly urged the necessity of amending the party constitution witha view to democratise the party machinery and also made a strongcase for holding of the long overdue elections to elect office bearersof the Central Committee, Executive Committee and the All-IslandCommittee. On 24.01.91 the Central Committee met and approvedthe recommendations of the committee. It was decided that the 5threspondent be appointed the all-island party organizer; the 1strespondent indicated to the Central Committee that she desiredto step down from the party leadership ; and a resolution to the effectthat in June (1991) a new leader should be appointed was passed(P12).
Petitioner thereafter received a circular letter dated 25.1.91 fromthe 1st respondent stating that the Central Committee was pleasedto appoint the 5th respondent as the all-island party organizer andrequesting the petitioner to give all assistance to the 5th respondentin the task of reorganizing the party. By letter dated 1.2.91 (P14)written by the petitioner to the 5th respondent as the newlyappointed all- island party organizer, he again highlighted thenecessity of democratising the party structure and holding of elections.The petitioner by letters 8.6.91 (PI 5) and 21.6.91 (P16) at theinvitation of the 5th respondent submitted comprehensive proposalsdirected towards reorganization of the party. It is also in evidencethat the petitioner expressed similar views about party elections atcertain seminars organized by the party.
Later, the 1st respondent changed her mind regarding steppingdown from the leadership. By letter dated 23.8.91 (P59) circulatedby the 1st respondent, a copy of which was addressed to thepetitioner, she stated among other matters that although she hadalready expressed her desire not to stand for election as presidentof the party, in view of a deep seated conspiracy taking place tooust her from the leadership, she had decided to continue aspresident. The reference to 'conspirators' in that letter stirred up ahornet's nest in the party circles.
Sri Lanka Law Reports[1993] 2SriL.R.
2nd respondent by his statements made to the media on 3.6.92(P61A) and on 20.9.92 (P61D) announced that party elections werecoming soon. 1st respondent sent a circular letter dated 14.10.92(P66) stating that arrangements were being made to hold electionsof the party no sooner the atmosphere to hold such elections wasconducive and requested all concerned to desist from signing anydocument which would cause dissension within the party. About thetime 1 st respondent sent letter P66, it appears that there was a hueand cry for party elections coming from several quarters. SLFPcouncillors of local bodies in the Galle District who met on 4.10.92(P60D) with the active participation of the 25th respondent, who isa member of the Central Committee; SLFP bhikku organization whichmet on 8.10.92 (P60C) and some SLFP Gampaha District organizersheaded by the 24th respondent, a member of the Central Committee,who met on 20.10.92 (P67), were all demanding party elections. TheGampaha District party organizers sent a petition to the 1strespondent requesting among other matters that elections be held.The signatories to this petition were headed by the 24th and5th respondents, both of whom are members of the CentralCommittee. The appointment of the 20th respondent as a GampahaDistrict organizer by the 1st respondent was also condemned in thatpetition as being dictatorial.
Elections of the SLFP youth organization were held on 3.10.92and the 1st respondent publicly announced that they weremanipulated, while the 5th respondent in a statement to the mediadenied this allegation (P20E1, P20E2 & P20E3). Elections of theSLFP bhikku organization were held in October 1992 but the electionswere anulled by the 1st respondent on the ground that they wereirregular (P20F & P20F1). 5th respondent made statements to themedia contradicting that position (P20F2). The petitioner submits thatthe 1 st respondent's views on the elections of the youth organizationand the bhikku organization, were dictatorial in that they were notexpressed with the sanction or approval of the Central Committee.It was during this time when the 1 st and the 5th respondents clashedopenly through the media, that the petitioner was suspended by the1st respondent by letter P23 of 16.10.92.
It appears that the non-holding of party elections, so vital to anorganization which professes to further democracy in the country, hasbeen a burning issue among party members. Petitioner submitted that
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
the party was subjected to ridicule by its opponents on that score(P11). 2nd respondent in his affidavit said " it has not been expedientto hold such election [for the Central Committee] for variety of reasons,which had been accepted by a majority of the general membershipof the party, including the parliamentary group and the generalmembership [sic] and the Central Committee appointed in 1986 hascontinued to perform its functions without objection and the generalmembership including the petitioner submitted to its authority."
The statement is absolutely devoid of detail. As to what the varietyof reasons were, Mr. de Silva PC. was unable to enlighten us, buthe submitted that the insurgent activities in the country to whichseveral SLFP members had fallen victim, was one of the probablereasons. As against this, for the petitioner it was submitted that eventhis reason does not hold water, because since 1986 several electionswere held in the country at the national level, parliamentary, provincialcouncils' and local authorities'.
A political party is a voluntary association of individuals who havecome together with the avowed object of securing political power onagreed policies and a leadership. Cohesion is a sine qua non ofsuccess and stability whether a political party is in power or in theopposition. To foster party cohesion discipline among its membersbecomes absolutely necessary. Party disintegration has to be arrestedby firm disciplinary measures that include expulsion which Article 99(13) (a) of our Constitution itself recognizes. The members of a partyare bound together by a contract which is usually the partyconstitution, from which arises contractual obligations of themembership. These obligations are either express or implied.
Mr. H. L. de Silva, P.C. commended to us the dicta of Shan/anandaCJ. in the case of Yapa Abeywardene v. Harsha Abeywardene andanother (,6). In particular, he drew our attention to the followingpassage from that judgment at page 7.
" The argument [based on freedom of thought and conscience
and freedom of speech and expression guaranteed under
the constitution] in support of this ground could have been
112 Sri Lanka Law Reports[1993] 2 Sri LR.
addressed acceptably to a court of a century ago when partysystem was in its embryo. But it overlooks the democratic devel-opment of a century. In 1888 famous parliamentarian John Brightcould say 'I must follow my own judgment and conscience andnot the voice of my leaders. But today thanks to the evolutionof the party system, democracy has assigned the individual memberto the role of a cog in the party wheel and it is the party thathas become spokesman of the country's interests. The partysystem has reached the stage where the individuality of theaverage party member has scarcely an opportunity of findingindependent expression. The party caucus tends to override allopposition and once the party line is decided, the memberbecomes a little more than a rubber stamp for its decisions. "
In Yapa Abeywardene's case the point at issue was a violationof a directive given by the party to vote in favour of a particular bill.The justification alleged for Yapa Abeywardene's conduct was the'free mandate1 theory in relation to actions of parliamentarians.Perhaps the observations of Sharvananda CJ. could be understoodin that context. The soundness of that sweeping dicta was doubtedin the case of Dissanayake and others v. Kaleel and others (supra)where Kulatunga J. was constrained to remark “ but he is not a lifelesscog liable to be subject to unlawful or capricious orders of directionswithout remedy. '' In the same case, Fernando J. remarked “ I takethe view that a member has not been reduced to the position of amere cog in the party machine bereft of any independence of action.While his relationship to the party tends to suggest that he has noindependence, some of his constitutional functions are essentially,discretionary, quasi judicial ; some even judicial." Mr. H. L. de SilvaPC. submitted that in respect of non-constitutional functions of amember the “ cog in the wheel " theory should still hold good. I amunable to agree with that proposition. If for instance, the party givesa direction to a member in direct violation of a fundamental policyof the party, is that member meekly bound to obey such a direction?;or if the party gives a direction to a member in flagrant violation ofa term of his contract with the party, is such member expected totamely submit to the direction? I am unable to subscribe to aproposition which tends to devalue the nature of the contractual bondof a political party vis-a-vis a member (and particularly a Memberof Parliament) to a relationship perhaps that of master and servant.
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
As the statement of policies in the SLFP constitution reveals, itis a party unequivocally committed to the ideals of democracy. Thecontention of Mr. Wijesinghe, PC. in vindication of the impugnedconduct of the petitioner, is his consistent demand for party electionsfrom his leaders receiving negative response. The petitioner questionsthe moral justification of his party calling for greater democracy inthe country, when there are no party elections and thus no mani-festation of democracy within the party itself. This scenario remindsme of the story narrated by the Greek biographer Plutarch, aboutLycurgus, the 9th century B.C. traditional law-giver of Sparta. Lycurgusbeing asked why he, who in other respects appeared to be so zealousfor equal rights of men, did not make his government a democracyrather than an oligarchy, replied, " Go you and try democracy in yourown house."
It was contended by Mr. Wijesinghe, PC. that the petitioner wasbound by Rule 26 (1) of the party constitution (i) to " take stepsto fulfil the objects of the party " – democracy was one suchobject ; and (ii) to " popularize the party among the people. "Those were responsibilities of a party member in terms of theconstitution. The statement to 'Lakdiva* the excerpts from whichform the foundation of the charges against the petitioner, contendsMr. Wijesinghe, was made in furtherance of the objects of the partyand to popularize the party among the people after the petitionerdismally failed in his attempts to force the leadership to hold elections.Even the allegation made by the petitioner that there exists a dan-gerous dictatorship within the party is referable to the non-holdingof elections. It could be seen that all the excerpts in P27 except thereference to the late President Premadasa and the UNP relate todemocracy and non-holding of party elections. It is idle to think thatthe Central Committee took exception to the reference made to thelate President Premadasa and the UNP, but in any event that ref-erence too, indirectly (not remotely) relates to the lack of partyelections and the resultant party disunity.
Mr. H. L de Silva, PC. submitted that the petitioner has failedto requisition meetings of the Executive Committee or the All-IslandCommittee, of both of which he is an exofficio member, by obtainingthe signatures of 1/3rd of their membership, in terms of Rule 13 (ii)of the party constitution ; therefore, it was submitted, that the petitionerhas not exhausted all the fora within the party, to ventilate his viewsbefore he spoke to the media. I see no force in this contention
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because in the circumstances in which the petitioner was placed, thatwas an impossible task to have embarked upon, without the blessingsand contrary to the wishes of the leadership. As Mr. Wijesinghe, PC.points out, a similar attempt by the Gampaha District organizers ledby a senior party member and a member of the Central Committee- the 24th respondent, proved abortive (P67) ; and in any event the1st respondent's injunction (P66) to desist from signing any document'which will cause dissension within the party' was an insuperableobstacle to signing or collecting signatures for a notice of requisition.It was also pointed out that the 1st respondent's power to suspenda member under the constitution, which power she never failed toexercise, was always menacing.
Passage of time has not staled the force of John Stuart Mill'sstatement that " if all mankind minus one were of one opinion, andonly one person were of the contrary opinion, mankind would be nomore justified in silencing that one person, than he, if he had power,would be justified in silencing mankind.'' It is this fundamental freedomof speech and expression including publication that is enshrined inArticle 14 (1) (a) of our Constitution which is the supreme law ofthe country. Article 14 (1) (c) of the Constitution guarantees to everycitizen the freedom of association. The freedom of association placesa voluntary self-limitation on the freedom of expression and thatself-limitation is the foundation of the exercise of the freedomof association. How much of the freedom of expression has to becompromised for the sake of freedom of association-? The inter-playbetween these two freedoms is best expressed in the words ofFernando J. in Dissanayake's case (supra) :-
" The petitioners' case was presented throughout as if onlytheir rights, and fundamental rights, were involved. The partyrules involve all the other members as well. What of their right?Just as the petitioners agreed not to criticise their party andcolleagues in public, without prior internal discussion, so alsotheir fellow-members undertook a reciprocal obligation not tocriticise the petitioners. That is not all. The petitioners soughtto relegate the party rules to the lowest level in the hierarchyof norms. But Article 99 (13) (a) impliedly recognizes at leastone aspect of the party rules and discipline. More important,the rules of a political party are not a mere matter of contract,but the basis of the exercise of the freedom of association
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Dheeraratne, J.)
recognized by Article 14 (1) (c)One of the conditions
on which party members agreed to exercise this fundamentalright was by mutually accepting reciprocal obligations placinglimitations on the exercise of the freedom of speech by eachother, in the interests of their association. Hence no questionof superior or inferior norms arises. Inherent in the twofreedoms is the liberty to make adjustments0
Petitioner firmly and honestly believes that all maladies afflictinghis party, which is committed to the ideals of democracy, spring fromthe failure to hold party elections since 1986. He may be right inhis opinion ; or he may be wrong ; but that does not concern thiscourt. The party constitution stipulates holding annual elections forthe party organizations and the leadership is bound, as far as themembership is concerned, to hold such elections annually or withina reasonable period determined by the Central Committee. Nomeetings of the Executive Committee or the All-Island Committeewere summoned and thus the petitioner was deprived of theopportunity of placing his views before those committees. Thepetitioner took every possible step within the available party fora topersuade the leadership to hold party elections and when hispersistent pleas brought no results, in the best interests of his party,he spoke to the media. The statement to 'Lakdiva' was couched inmoderate language and was expressed without any semblance ofvituperation directed at any person. I am of the view that in thosecircumstances the petitioner's impugned statements are justified ashaving been made in the exercise of his freedom of speechguaranteed under the Constitution.
In view of the conclusion already reached by me, it is unnecessaryto deal with the questions raised on behalf of the petitioner relatingto mala tides of some members of the Central Committee, failureto observe principles of natural justice in the decision making process,and as to whether the petitioner was differently treated from othermembers of the SLFP who chose to ventilate intra-party conflictspublicly in the media. Particularly, in regard to the questions of maliceand differential treatment, I am glad that we have been mercifullysaved from entering 'a political thicket'.
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[1993] 2 Sri L.R.
The application is allowed and I hold that expulsion of the petitionerfrom the SLFP by decision of the Central Committee made on 2.6.93was invalid. I make no order as regards costs. We deeply appreciatethe assistance given to us by learned counsel.
WIJETUNGA, J. – I agree.
I have had the benefit of perusing the judgment of Dheeraratne,J. As I am not in agreement with it, I have written this dissentingjudgment.
The facts have been set out fully in the judgment of Dheeraratne,J. and it is unnecessary for me to repeat them in detail. Theapplication rests largely on the legal issues that arise for determi-nation.
The facts briefly are as follows :
The petitioner had joined the Sri Lanka Freedom Party in 1982 andin 1984 he was appointed as the chief organizer for Bandaragamaelectorate in the Kalutara District. In 1989 he was elected to theKalutara District as a Member of Parliament.
In September, 1992 the petitioner made statements to the IslandNewspaper which had subsequently been broadcast by the B.B.C.to the effect that the 1st respondent had been at the helm of theparty for as long as thirty two years which was too long. The petitionerhad been suspended by the 1st respondent in exercise of the powersunder Article 14 (7) of the Party Constitution for the breach of Partydiscipline.
The petitioner had subsequently given an interview to the LakdivaNewspaper (P26) article containing excerpts of an interview publishedin the Lakdiva Newspaper on 24.1.1993 which was a criticism of theleadership and party. A show cause letter (P27) dated 3.2.1993 wassent by the General Secretary of the party to the petitioner and finallythe inquiry was fixed for 1.6.93.
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Ramanathan, J.)
By letter dated 28.5.93 (P 38) the petitioner informed theDisciplinary Committee and stated that no purpose will be served inhis placing facts before the Committee which was not impartial andwhich was constituted by persons who were not duly elected andceased to hold office.
The petitioner was informed of his expulsion from party member-ship by letter dated 3.6.93. (P40)
The petitioner has applied to this Court in terms of the provisoto Article 99 (13) (a) of the Constitution challenging his expulsionfrom the Sri Lanka Freedom Party. The Constitution empowers thisCourt to determine whether the expulsion of a Member of Parliamentfrom a recognised political party or independent group which hebelongs is valid, (the emphasis is mine)
I am of the view, that this Court is not empowered to examinethe merits of the decision expelling the petitioner but is confined toa consideration of its validity. The question is not whether the expulsionis right or wrong. This is not an application by way of appeal or reviewof proceedings or order made in the District Court.
The principle contention made by the petitioner was that theCentral Committee of the party was not a validly constituted body.
On the material placed before me I am satisfied that the membersof the Central Committee were de facto holders of office who at thetime of the making of the impugned order of expulsion of the petitione.'were de facto office holders.
Professor Wade, Administrative Law (6th edition) page 336, hasillustrated the wide application of the de facto functionaries bya House of Lords case Scadding v. Loranta (17) where Lord Truno,L.C. remarks
" You will at once see to what it would lead if the validityof their acts, when in office, depended upon the propriety oftheir election. It might tend, if doubts were cast upon them,to consequences of the most destructive kind. It would createuncertainty with respect to the obedience to public officers,and it might lead also to persons, instead of resorting to
Sri Lanka Law Reports
[1993] 2 Sri LR.
ordinary legal remedies to set right anything done by theofficers, taking the law into their own hands “.
I am unable to agree with the submission advanced on behalfof the petitioner that the de facto doctrine has no application todomestic bodies like the Central Committee, the 36th respondent. Iam of the opinion, that there are no limitations placed on the de factodoctrine which has a wide application. I am fortified by ProfessorWade's comments at page 337.
" The de facto doctrine has a long history and has beenapplied to a wide variety of officers. It was even said to haveapplied to monarchy, so that it might validate acts done in thenames of kings whose title to the throne was consideredillegitimate and who were kings 'in fact and not in law'. At theother end of the scale the doctrine was invoked from anearly date to uphold copyhold titles enrolled by stewards ofmanors who were not properly appointed “.
I am satisfied that the members of the Central Committee wereacting with colour of office and in pursuance of that office, madeorders which are deemed to be valid in law. The members of theCommittee have exercised their powers de facto.
There has been no prior direct proceeding in which the validityof their appointments or rights have been challenged*. Their authoritycan be questioned only in proceedings which directly challenge theirappointments. Rubinstin, states in his treatise on Jurisdiction andillegality pages 206-206 :
“ The mere fact the acts and decisions were made by atribunal which has not been legally appointed is not sufficientto render them nullities. If a Judge is recognised de facto, hisauthority can be questioned only in proceedings which directlychallenge his appointment or which seek to prevent him fromhearing a case. Any other method of attack is doomed to failure
A corollary to the doctrine of de facto office holder is the rulethat a collateral attack on the legal authority of the office holder cannotbe made when the validity to an act done by the de facto holderof the office is being challenged.
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Ramanathan, J.)
The petitioner is in these proceedings challenging the validity ofhis expulsion by the Central Committee. It is not open for the petitionerin these proceedings to question the legal authority of the CentralCommittee. This should have been done before the expulsion in adirect proceeding for a declaration that the Central Committee hadceased to hold office.
I am in agreement with Mr. de Silva's submission that had theDistrict Court action filed on 31.5.93 been filed earlier and had thepetitioner obtained a declaration that the members of the CentralCommittee had not been duly elected in terms of Article 13 of theParty Constitution, then any subsequent expulsion would have beenof no legal effect. It should have been done before the expulsionby a direct proceeding seeking a declaration that the CentralCommittee member had ceased to hold office. In Re K. StephenPerera (,5> held that the right of a de facto Judge to hold office withcolourable title to his office, cannot be questioned in collateralproceeding. His authority can only be questioned in which it directlychallenges the validity of his appointment.
I am satisfied that there has been no breach of the rule of naturaljustice. A hearing was offered but the petitioner chose not to availhimself of it. The order cannot be characterised as unreasonable inthe Wednesbury sense (,) for bad reasons. The petitioner's attack onthe leadership and the party in the Lakdiva newspaper is a breachof party discipline by making public criticism of an internal party matter.The petitioner could have also resorted to Article 31 (2) of the PartyConstitution to persuade 1/3rd of the membership to his views. Insteadhe resorted to a scrullious attack on the leadership to the public,in the Lakdiva newspaper. He eschewed the domestic forum of theparty. I am unable to say that the action of the Central Committeewas " unreasonable " in the circumstances of this case.
The Central Committee of a political party must be allowed adiscretion to decide what sanctions are appropriate for violations ofparty discipline. A party is entitled to sever the link between a memberand his party, terminating his contractual relationship. A collateralattack is disallowed in these proceedings and the expulsion by theCentral Committee of the petitioner is valid.
Sri Lanka Law Reports
[1993] 2 Sri L.R.
I will now proceed to consider the plea of approbation andreprobation which was placed in the forefront of the submissions madeby Mr. de Silva. The principle is that a person cannot both approbateand reprobate. A person is not allowed to accept a benefit and rejectthe rest.
It is the Central Committee which approved the petitioner’snomination as a candidate at the Parliamentary Elections of 1989.As submitted by Mr. de Silva when the petitioner tendered hisnomination paper as a candidate of the SLFP he made the repre-sentation that the signature of the SLFP contained therein was thesignature of the Secretary who was the duly appointed Secretary ofthe party. Further, he accepted the position that the Central Committeewhich approved his candidature was a duly constituted body, whichhad the required legal competence to approve his candidature. Havinggot the benefit of the acts of the Central Committee and of theSecretary of the party, it is certainly now not open to the petitionerto question the validity of the appointment of the Central Committeeand the office bearers of the party.
The petitioner cannot be permitted to take up inconsistentpositions. In short, he cannot be permitted to approbate and reprobate.This principle is a bar to his attacking the validity of the competenceof the Central Committee, in an endeavour to avoid the consequencesof his expulsion by the Central Committee.
It was urged on behalf of the petitioner that he had maderepresentation to his party and as this was unheeded he had no forumin. which to express his views and he was justified in raising issuesin public.
A Member of Parliament owes allegiance to his party ingovernment or in opposition as the case may be. Accordingly, hevotes in the divisions of the House in compliance with the instructionsof the party whips. A Member of Parliament is subjected to threeinterests (1) national interest ; (2) party interest ; (3) constituencyinterest. Where the party interest is involved there is no justificationin going public. Any dissent must be raised and discussed internallywithin the party as this is purely a domestic matter. The petitioneris entitled to canvas reforms within the party. He must find anopportunity to get his views accepted within the party, at Parliamentary
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Ramanathan, J.)
party meetings, unofficial groups. The petitioner is a member ofParliament. He could canvas support for his views in the All IslandCommittee, Executive Committee and get the support of 1/3rd of themembership to set the party machinery into operation for his reforms.
The petitioner has not adequately employed his party forumsprovided by the Party Constitution instead he has raised matters inpublic vide (P26).
I am of the opinion, that where a person takes up internal mattersin public and tries to destroy the party, he is subject to party disciplineand must take the consequences for it.
The petitioner's standing and weak support is reflected by thevoting of the Central Committee which has a cross section of partyopinion and consists of the party hierachy.
18 voted for petitioner'sexpulsion.
4voted against his expulsion.
2members abstained.
4members absent.
The majority vote was for the petitioner's expulsion. The opinionof the disciplinary committee was unanimous. It is clear that the factionthe petitioner represented has only minimal support.
I am inclined to agree with the submission of Mr. de Silva thatas the petitioner was unable to muster support of 1/3rd of themembership of the All Island Committee and Executive Committeefor the purpose of tabling a resolution ; he resorted to public vilificationof the party and the leadership.
I am of the opinion, in the circumstances and facts of thisapplication, there was no justification for the petitioner to abandonthe existing party forum and to voice these matters in public.
The next question for consideration is to what extent the right offreedom of speech of a member of Parliament is restricted by therequirement of party discipline. The criticism of policies within a partyis legitimate but when done in public the answer depends on thefacts and circumstances of each case.
Sri Lanka Law Reports
[1993] 2 Sri L.R.
The petitioner admits he made a statement to the Lakdivanewspaper on 24.1.93. I now refer to P27 which interalia has extractsmade by the petitioner to Lakdiva newspaper as follows :
0 We call the S.L.F.P. a democratic party. We ask for amandate to establish democracy in this country but there isno democracy in our party itself. A very dangerous typeof dictatorship is prevailing in our party. This is the primaryreason for this dispute.
There has been only one leadership in the SLFP for thelast 24 years. This is a thing that should never happen in apolitical party working under a democratic structure. However,good may such leader be, it is a gross injustice to the ableand educated lot in the lower strata of the party whorepresent several generations and who always stagnate in thesame position. Therefore, a non-stop pressure from the bottomto the top is inevitable.
This is the main and primary reason for this dispute. It isan extraordinary thing if internal conflicts do not arise in a partylike this that calls itself democratic. The simple answer that thisis a fight between capitalism and socialism is not valid in fact.
Had we not made this struggle, there would have been noroom for the existence of any active politics in the SLFP bynow. What new thing have we given to the people? We havebeen stagnating in the same place for a number of years. Wecannot go forward without creating such a change andinnovation as this inside our party.
The progress and existence of the party rests on the victoryor defeat of the struggle we are carrying on for the establish-ment of democracy. There are two camps in the party now.A party so divided cannot March towards a specific goal.
No election of office bearers has been held in this partyfor the past eight years. This alone clearly shows that the partyleadership has accepted the position that it cannot win in ajust election held to elect office bearers.
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Ramanathan, J.)
If we are to challenge the anti-democratic and dictatorialleadership of a political party like the UNP, we shall first makeourselves strong. We shall have a leadership that can guideus towards one goal. But when it is not so?
Administrative structures of all descriptions in this countryare in the hands of the UNP. The UNP has been able tostrengthen its power in whatsoever manner in all political andadministrative spheres. At a time when all these strengths arewith him, I do not believe that President Premadasa will holdsuch a so called “ justn election. I do not think that Premadasacan be defeated in a" just" election. He will hold such electionsthat he can win.
Therefore, Premadasa can be defeated only through a truestruggle by the people. Such cruel rulers like these could notbe driven away through democratic methods. If we are to chasePremadasa away by any means we must have a true leadershipfor that purpose. Today what we lack is only the necessaryleadership. °
It seems to me on a consideration of the above statements thatMr. de Silva is correct in his submission that, that statement containedin P27 constitutes a condemnation and vilification of both party andleadership. The inevitable consequence of the statements is to lowerthe estimation’of both the party and the leadership in the eyes ofthe people as a whole.
As stated by Kulatunga, J. in Jayatillake v. Kaleel (18),
" A M.P. who uses his right to freedom of speech to createsuch a situation, whether as leader or as supporter, violatesthe party obligations and exceeds the bonds of suchfreedom : he thereby forfeits the protection of Article 14 (1)(a) of the Constitution. "
A member of Parliament is entitled to freedom of speech in publicbut subject to the constraints of party discipline. The comments thatare disparaging and injurious to the party and leadership would notgive a person the protection.
Sri Lanka Law Reports
[1993] 2 Sri L.R.
The petitioner has raised the allegation of malice. The law placesa heavy burden on the party who alleges mala tides. In the presentcase, I am of the opinion, that the material placed before this Courtin support of the allegation of mala tides is tenuous, insubstantialand wholly lacking in particulars and vague. I hold it has not beenestablished.
It is necessary to emphasize that the relationship of a memberwith his political party rests on a contractual basis. The expulsionof a member is the severance of the formal contractual link betweenthe member and the party.
Where there has been a breach of party discipline a party hasthe discretion to mete out punishment which is appropriate in thecircumstances of each case. The primary purpose of a political partyis the acquisition of power. The unity of the party is fundamentalconsideration and many of the issues are in substance of a politicalnature. A party will have to decide from time to time what courseof action is best suited to the achievement of the preservation ofthe unity of the party. It is a reasonable proposition that theassessment of these matters fall within the realm of political judgmentand the scope of judicial intervention is restricted.
This Court's constitutional jurisdiction is confined to the validity ofthe expulsion and there is no warrant to trespass upon areas wheredecisions are matters purely of political judgment, unless manifestlyunreasonable.
The limitations of the jurisdiction of this Court have been correctlyand precisely expressed by Kulatunga, J. in S.C. Application Nos.1 and 2/92 in Jayatillake v. Kaleel (,8).
" A political party must be allowed a discretion to decidewhat sanctions are appropriate for violations of Party discipline;and if the Party decides, bona fide, to expel any member guiltyof repudiating the Party, this Court will not in the exercise ofits constitutional jurisdiction impose such member on the Party.If that is done, Parliamentary Government based on the PoliticalParty System will become unworkable
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Ramanathan, J.)
I hold that the expulsion of the petitioner is valid for the foregoingreasons and I dismiss the application with costs.
Application allowed.