Continued from last week
Kulatunga J. in agreement with Wadugodapitiya J. determined that the expulsion of those two Petitioners was valid. Fernando J. also, but in a separate judgment, determined that the expulsion of the petitioners was valid.
Kulatunga J. observed that even if the MP’s actions contravene party discipline, such could not override their constitutional and statutory rights. However, His Lordship has stated that he had upheld the right of MPs to take proceedings under Article 38 of the Constitution or to agitate matters in public, but after first raising the issues within the party. Due to the observation of Kulatunga J., the freedom of MP has been restricted by introducing a condition that the MP should take up his issues first within the party before allowing such freedom of conscience to be exercised freely in public.
Amunugama and others v UNP and others case
The Petitioner, MP Sarath Amunugama and four other MPs who were members of the UNP were summarily expelled from the membership of the party. The immediate ground of expulsion was that the Petitioners had met President Chandrika Bandaranaike Kumaratunga and assured her of winning the Presidential Election 1999 when in fact the UNP had nominated its leader as a candidate at that same election.
Another allegation made, especially against the petitioner MP Amunugama, was announcing to the media about the formation of a National Government without a mandate from his party. In a wide ranging judgment which discussed the principles of the natural justice at length, it was held by the Supreme Court that expulsions of several MPs of the UNP were invalid by reason of the failure of the respondent to observe the principles of natural justice.
Bogollagama v UNP and others case
The Petitioner Rohitha Bogollagama who was an opposition (UNP) MP, crossed over to PA and was sworn in as a Minister in the Government of then President Chandrika Kumaratunga. Subsequently, the petitioner was served with a letter by the UNP, which stated that the working committee had noted that he had ipso- facto ceased to be a member of the UNP with effect from November 18, 2004 by reason of Article 3 .3(b) read with 3.4 (d) of the party constitution.
The petitioner further claimed that the said amendment was introduced obviating the need for disciplinary proceedings and the compliance with rules of natural justice and also effectively preventing resort to the Constitutional remedy given under Article 99(13) of the Constitution of the Republic.
The Supreme Court observed, “If his complaint is that he has been expelled from membership of his party in breach of rules of natural justice, he will ordinarily be entitled to relief and this court may not determine such expulsions to be valid unless there are overwhelming reasons warranting such decision. If there are any reasons about such matters, the expulsion should be struck down.”
The Supreme Court per Jayasinghe J. held that Article 3.4 of the constitution of the UNP is inconsistent with the provisions of Article 99(13) (a) of the Constitution of the Republic and in that it sought to take away the constitutional rights of the Petitioner to invoke the Jurisdiction of the Court. Accordingly, the Supreme Court determined that the ‘purported expulsion’ is of no force or avail in law and accordingly invalid.
Rambukwella v UNP and others case
The Petitioner Rambukwella who was a member of the Opposition UNP, accepted a Ministerial portfolio and was so appointed by the then President. Subsequently, he was expelled from the UNP on the basis that he had violated the party constitution. The Supreme Court after inquiry held that the expulsion was invalid.
The Supreme Court further held that (Per Sarath N Silva CJ).
(1). The standard of review of a decision of expulsion should be akin to that applicable to review of the actions of an authority empowered to decide on the rights of persons in Public law. Such review comes within the rubric of Administrative Law.
(2). Where a person has the right to be heard the provisions of sections 41 (2) of the Judicature Act will apply and such person is entitled to be represented by an Attorney-at-Law. The Panel of Inquiry acted in breach of the principles of natural justice in denying legal representation to the petitioner.
(3) In terms of section 41(2) of the Judicature Act No. 2 of 1978, the right to representation by an Attorney-at-Law can be denied only if there is express provisions by law to the contrary, the guidelines issued by the then General Secretary cannot be considered as an express provision of law.
Samarasinghe v UNP and others case
The Petitioner – Mahinda Samarasinghe MP, also has received an invitation from the President to join his government. Accordingly, Petitioner MP, Samarasinghe accepted a ministerial portfolio in the government. Consequently, he too was expelled from the UNP. The charges as contained in the charge sheet that served on him by the UNP are identical to the charges against MP Rambukwella. The Court, in this case, held that it sees no reason to depart from the findings in the said Rambukwella case and decided that the said expulsion of petitioner was invalid.
Piyasena v Illankai Tamil Arasu Kadchi and others case
The Petitioner has filed this application challenging his purported expulsion from the party. The Supreme Court held that the decision to expel the petitioner from the membership of the ITAK on a purported decision of the Disciplinary Committee is ex – facie illegal in as much as it has not been made by the appropriate disciplinary authority in terms of the ITAK Constitution. In these circumstances, the Court held that it is not necessary to go into any of the other grounds urged in the petition. Therefore, the Supreme Court held that the expulsion of the petitioner is invalid.
The Supreme Court further held: (Per His Lordship Saleem Marsoof J., ) that:
(a) The jurisdiction of the Supreme Court to determine the validity or otherwise of an expulsion in terms the proviso to Article 99 (13) (a) of the Constitution is neither injunctive nor discretionary, and does not necessitate any inquiry into the conduct of a person invoking the said jurisdiction.
(b). The jurisdiction conferred by Article 99(13) (a) of the Constitution is sui generis, original and exclusive, and does not confer any discretion to the Supreme Court to dismiss in limine an application filed thereunder merely on the ground of suppression or mis-representation of material facts, as in cases involving injunctive relief or applications for prerogative writs.
(c) The only matter for determination in terms of the proviso to Article 99(13) (a) of the Constitution is the validity or otherwise of the expulsion of the applicant MP, and his conduct subsequent to his expulsion is altogether irrelevant.
Bhasheer Segu Dawood v Ferial Ashroff and others
As the facts revealed, the petitioner was, at the material time, a member of the Sri Lanka Muslim Congress (The SLMC) which party together with the Sri Lanka Progressive Front formed ‘a new political alliance’ called the National Unity Alliance (NUA) by a Memorandum of Understanding (MOU) on June 10, 1999. The NUA contested Parliamentary elections in October, 2000. The petitioner’s name appeared on the nomination paper of the NUA at the aforesaid election for the Batticaloa District but he was presumably not eligible to be declared elected on the basis of preferences received by him at the poll.
However, on a request on October 13, 2000, made by the 4th respondent (the Secretary- General of the SLMC) made in terms of the MOU between the SLMC and the NUA dated 13th August, 2000, the NUA nominated him as its National List member under Article 99A of the Constitution and the 9th respondent (the Commissioner of Elections) declared the petitioner as a Member of Parliament under that Article.
By her letter dated July 3, 2001, the 1st respondent (the Leader of the NUA) informed the petitioner that he was expelled from the membership of the NUA with immediate effect and that as the petitioner represented the NUA in Parliament, his expulsion will be communicated to the 10th respondent (Secretary – General of Parliament) and the 9th respondent (the Commissioner of Elections). The Secretary- General of the NUA on October 13, 2000, accordingly wrote to the Commissioner of Elections.
The National Unity Alliance was, in the words of the Memorandum of Understanding dated June 10, 1999, ‘a new political alliance’, that brought together two recognised political parties for the purposes of elections, namely, the Sri Lanka Muslim Congress and the Sri Lanka Progressive Front. The National Unity Alliance itself became a recognised political party for the purposes of elections within the meaning of section 7 of the Parliamentary Elections Act, No.1 of 1981.
The petitioner contended that neither he, nor that matter any other individual, was a member of the NUA, for the NUA Constitution did not provide for any members other than political parties. Individuals could not become members of the NUA. The petitioner contended that in as much as he was not a member of the NUA, the 1st respondent’s purported expulsion of the petitioner from the NUA was a nullity.
The petitioner further contended that in any event the purported expulsion was invalid in terms of the Constitution of the National Unity Alliance. Jayamanne, PC and Rajapakse, PC contended that, if as the petitioner maintains, he was not a member of the NUA, then he is precluded from invoking the jurisdiction of this Court, under and in terms of Article 99 (13) (a) of the Constitution, for a person invoking the jurisdiction of this Court under that Article should have ceased by resignation, expulsion or otherwise to be a member of a recognised political party…… on whose nomination paper….. his name appeared at the time of his becoming such Member of Parliament.
According to the Supreme Court ‘the submission of learned counsel, attractive though it appeared at first sight was in the view of the Court flawed, for it rested on the erroneous assumption that a Member of Parliament must be a member of recognised political party.
In this regard, the Supreme Court observed as follows:
“Where there is a purported expulsion of a Member of Parliament such Member is entitled, under Article 99 (13) (a) of the Constitution, to invoke the jurisdiction of this Court to determine whether such expulsion was valid. In order to invoke the jurisdiction of the this Court, a petitioner is not required to establish that he was a member of a recognized political party on whose nomination paper his name appeared at the time of becoming such Member of Parliament. Members of Parliament who are ‘elected’ are candidates whose names appear on the nomination papers of recognized political parties. There is no requirement that such candidates shall also be members of such parties. The petitioners, according to the Court were declared ‘elected’ under and in terms of Article 99A of the Constitution.”
“There is no requirement in that Article for a nominee of a recognised political party, to fill a seat due to such political party. Neither the provisions of the Constitution nor the provisions of the Parliamentary Elections Act require a person to be a member of a political party to be eligible to be nominated as a candidate for election to Parliament. Of course, political parties and alliances of political parties may have members who can be expelled. In fact, the new Constitution of the NUA does provide for ‘Founder Member’, namely, the SLMC and the SLPF and individuals. But as far as the petitioner is concerned, he was and remains a member of one political party, namely, the SLMC, and that party alone although he was a candidate nominated by the NUA for election to Parliament in terms of Article 99A of the Constitution.”
As the Supreme Court further observed, the petitioner, not being a member of the NUA could not be expelled from it. Therefore, the Supreme Court per Amerasinghe J. with Wadugodapitiya, J and Gunasekera, J agreeing, therefore, held that the purported expulsion of the petitioner, Basheer Segu Dawood, was invalid since it was null and void and of no force or avail in law; the purported expulsion by the first respondent is of no value or importance: it amounts to nothing and shall be treated as non- existent for the purposes of Article 99(13) (a) of the Constitution. The Supreme Court also ordered the 1st respondent to pay the petitioner Rs. 25,000 as costs.
Zainul Abdeen Nazeer Ahamed v Sri Lanka Muslim Congress and others
The Petitioner was a member of the 1st Respondent party, the Sri Lanka Muslim Congress. The SLMC is a political party recognised under the Parliamentary Elections Act No. 01 of 1981(as amended). The 2nd Respondent and the 3rd Respondent in this case are the Leader and the Chairman of the SLMC and are also members of the SLMC’s High Command. The High Command of the SLMC is the apex decision-making body of the party.
At the General Election conducted in the year 2020, the Petitioner was elected as a Member of Parliament from the SLMC and agreed to conduct himself as a member of the opposition in line with the electoral pact of the SLMC. The Petitioner along with the 6th, 16th and 24thRespondents had signed a document as members and representatives of the SLMC in Parliament pledging their loyalty to the constitution, rules and regulations of the SLMC.
The Petitioner himself has produced the said special pledge of loyalty to the constitution, rules and regulations marked ‘P5’ with his Petition. The facts relevant to this case revolved around the voting that took place at the budget proposal (Appropriation Bill) for 2022 presented to the Parliament by the Minister of Finance on 12-11-2021. The second reading of the said Appropriation Bill had been fixed for 22-11-2021.
The SLMC had then called an urgent meeting of the High Command to be held on 21-11-2022 which was the day prior to the said scheduled second reading. This was for the purpose of deciding how members of the SLMC should vote at the second reading of the Appropriation Bill.
It was the position of the SLMC that its High Command had decided at that meeting not to vote in favour of the Appropriation Bill in Parliament. The High Command had also decided that the SLMC members could either vote against the Appropriation Bill or abstain from voting.
The 1st Respondent has produced its decision marked ‘1R2’. It is the position of the SLMC that the Petitioner being aware of the aforesaid meeting and its unanimous decision taken on 21-11-2021 had nevertheless proceeded to vote in favour of the Appropriation Bill on 22-11-2021 at its second reading, and at the third reading as well, in blatant violation of the decision of the SLMC High Command. The SLMC has alleged that the Petitioner while holding a senior and substantial position in the party High Command has breached the party decision.
It was the position of the Petitioner that he was not informed of any such decision taken at the meeting held on 21-11-2021and therefore, he had voted in favour of the Appropriation Bill at its second-reading held in Parliament on 22-11-2021. It was in the above circumstances that the SLMC has called for a written explanation from the Petitioner by the letter dated 27-11-2021 (produced marked “P9”) signed by the 8th Respondent who was the Secretary of the SLMC.
After the exchange of several other letters between the SLMC and the Petitioner which were referred to in the judgment the SLMC by the letter dated 23-04-2022 produced marked P15, had communicated to the Petitioner about his expulsion from the party. Thus, it was in the above backdrop that the Petitioner had filed the Petition in this case in terms of Article 99 (13) (a) of the Constitution, praying in his Petition for an order from this Court to set aside and invalidate the SLMC’s decisions to expel him from the party as per letter P15 dated 23-04-2022.
Counsel Sumanthiran PC, for the 1st, 2nd and 8th Respondents (i.e., the SLMC, its Leader, its Secretary) conceded that the SLMC had not held a formal inquiry against the Petitioner before issuing P15. However, it was his submission that the Petitioner has failed first to show cause that he had a prima facie tenable explanation, which he was bound to tender in the first place, as response to P9.
Sumanthiran, PC, also submitted that the antecedent hearing that the Supreme Court has given to the Petitioner on the totality of the case would satisfy the compliance of Rules of Natural Justice (Principle of ‘Audi Alteram Partem’) as far as the validity of the Petitioner’s expulsion from the party is concerned. It was, therefore, his submission that even on that ground the absence of a formal inquiry the instant case would not vitiate the decision of the SLMC to expel the Petitioner.
The High Command noted that the petitioner has not given any reason for violating the party decision taken at the High Command meeting held on 21.11.2021, except to plead his purported ignorance of the said decision. After due considerations of all these matters, the High Command has unanimously resolved to expel the petitioner from party membership with immediate effect.
Meanwhile, the Petitioner having accepted the cabinet portfolio was appointed as the Cabinet Minister in charge of the environment, on 28-4-2022. Although the Petitioner has stated in his petition that this appointment was made on 18-4-2022, the1st ,2nd and 8th Respondents have brought to the notice of the Court that this appointment was in fact made on 28-4-2022. The relevant Gazette notification has been produced marked P14(a).
According to the facts revealed, the Petitioner does not challenge his expulsion before the Supreme Court on the basis that the SLMC had failed to tender to him a copy of the constitution or its provisions he had requested. Nevertheless, then the Supreme Court also considered whether the petitioner could not have tendered a full response without the SLMC complying with his request for the relevant provisions and a copy of the party constitution.
It was the Petitioner himself who had produced a copy of the SLMC constitution annexed to his Petition marked P1. This meant, according to the Supreme Court, either he was in possession of the SLMC constitution or he was capable of easily getting it procured for his use on his own rather than making repeated requests to the party. Admittedly, the Petitioner was an experienced politician, whose political career has spanned over 30 years and at the time of his expulsion from the SLMC, he had held the position of ‘Deputy Leader I’ of the High Command and the post of the ‘Director of International Affairs’ of the party.
To be continued next week
