GOONERATNE AND OTHERS V. PREMACHANDRA AND OTHERS

011-SLLR-SLLR-1994-V2-GOONERATNE-AND-OTHERS-V.-PREMACHANDRA-AND-OTHERS.pdf


CA Gunasinghe v. Hon. Gamini Dissanayake, and Others (Ananda Grero, J.)137
GOONERATNE AND OTHERSv.PREMACHANDRA AND OTHERSCOURT OF APPEAL.
S. N. SILVA, J. (P. C/A),
R. 6. RANARAJA, J. ANDHECTOR YAPA, J.
C.A. APPLICATIONS NOS. 513-516.520-523/94SEPTEMBER 15.20.21 AND 22,1994.
Provincial Council – Expulsion from political party (Democratic United NationalFront – DUNF) – Provincial Councils Elections Act, No. 2 of 1988 s.63(1) proviso -Jurisdiction of the Court of Appeal – Jurisdictional ultra vires of the deciding body- Procedural ultra vires – Legitimate expectation principle – Breach of naturaljustice.
The 1st to 3rd respondents were the acting leader, acting general secretary andtreasurer respectively of the Democratic United National Front (DUNF) arecognised political party. The 4th to 8th respondents were members of theworking committee who constituted the disciplinary committee that inquired intothe conduct of the petitioners. The eight petitioners were members (councillors) ofthe Provincial Council of the Western Province. (W.P.C.)
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One Premaratne Gunasekera who was one of seventeen members of the WPCelected on the DUNF ticket held the post of Minister of Health and Fisheries of theProvincial Council of the Western Province (WPC). On or about 22 May 1994 hewas removed from that office by the Governor of the Western Province.
On 7.6.94 the DUNF group of the WPC held a meeting and decided that none ofthem would accept the vacated post. Any member of the DUNF who acted againstthis decision was to face disciplinary action. A further meeting of the group wasfixed for 11.6.94. On that day a meeting of the working committee of the DUNF washeld first and it was unanimously resolved to make a written request to theChairman of the WPC for a debate on the conduct of the Chief Minister indismissing Premaratne Gunasekera and that at such debate all members of thegroup should speak and vote condemning the conduct of the Chief Minister. Anymembers failing to sign the resolution and speak and vote was to be considered asacting contrary to the party constitution and conventions and liable to be expelledfrom the party. At the meeting of the group that followed only 8 of the 17 memberswas present. The petitioners were absent. The members present ratified thedecisions of the working committee and decided to send a copy of the resolutionprepared on the basis of the proposals of the working committee to all members ofthe group for signature and return to the acting general secretary on or before19.6.1994.
The text of the resolution forwarded to the councillors for signature was not thesame as that which was adopted by the working committee. The petitioners did notsign the resolution and return it as requested. On 26.6.1994 at a meeting held at10.00 a.m. the disciplinary committee comprising the 4th to 8th defendantsunanimously decided that the petitioners had deliberately acted contrary to thedecisions taken by the DUNF group on 11.6.1994 and concluded that thepetitioners by their conduct were guilty of a grave breach of discipline andrecommended that severe action be taken against them and in additionrecommended that disciplinary action be taken for requesting the Chief Minister, asreported in the Lankadipa Newspaper of 11.6.94, to remove PremaratneGunasekera from his ministerial post. A meeting of the working committee was heldon the same day (26.6.1994) at 3.00 p.m. It was disclosed at this meeting that 7members of the group (including Premaratne Gunasekera) had signed theresolution which the 8 petitioners had not There was no record of what the othertwo had done. The report of the disciplinary committee was tabled at this meeting.The committee unanimously decided to expel the petitioners from the DUNF. TheNational Executive Committee of the DUNF met the same day. The acting secretarypresented the report of the disciplinary committee at this meeting. It was reportedthat the petitioners had been found guilty on two counts (which was clearlyerroneous). It was recorded that after lengthy discussions the executive committeeunanimously decided to expel the petitioners from the DUNF. On the same day theacting secretary informed the petitioners that: 1
(1) by failing to sign the text of the resolution forwarded with the covering
letter dated 11.6.94 before 19th June '94.
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(2) by requesting the Chief Minister of the WPC, as disclosed by her in a
press release to the Lankadipa to remove Premaratne Gunasekera from the
post of Minister.
without prior discussions with party leaders or the DUNF group of the WPC thedisciplinary committee had decided that each of the petitioners had contravenedthe provisions of the several articles in the party constitution and therefore,recommended to the Working Committee to take disciplinary action against themand the working committee had decided to expel each of the petitioners fromparty membership and office held in the party and this decision was rectified bythe executive committee.
The petitioners sought to have the expulsion declared invalid under the provisionsof section 63( 1) of the Provincial Councils Election Act, No. 2 of 1988.
Held:
(1) This Court in exercising the jurisdiction conferred on it by section 63 of theProvincial Councils Elections Act should inquire whether the expelling body had –
acted within its jurisdiction
followed the procedure laid down in the Constitution of the party
acted in compliance with the principles of natural justice before taking thedecision to expel the petitioners,
and the grounds adduced for expelling the petitioners could be sustained,and
their alleged misconduct if proved, merited the extreme punishmentmeted out to them.
There was jurisdictional ultra vires in that,
the disciplinary committee which recommended that action be takenagainst the petitioners had no power to do so as it was not appointedaccording to the party Constitution.
the working committee had no power under the Constitution to decide toexpel the petitioners. Besides, the item of expulsion of the petitioners wastaken up as a matter arising from the minutes of the last meeting of theworking committee. Notice of such an important meeting should havebeen given to all members prior to the meeting. Further the telegramnotifying at least one of the petitioners of the meeting scheduled for26.6.94 had been handed In at 1.25 p.m. on 25.6.94 which was aSaturday and was delivered on Mondey 27.6.94. Notice of the meetinghad been sent in such a way that it would be received after the meetingwas held.
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The National Executive Committee which has the power under Article 7,4, 3 (f) to expel a member on a report by the disciplinary committeecomprises the persons mentioned in Article 7, 4. It is of utmostimportance that when a serious decision is taken affecting the status ofmembers of the party who were councillors of the WPC that all formalitiesnecessary to ensure their presence at its meeting on 26.6.94 werefollowed. Some exofficio members had received no notice. The agendafor the meeting was not set out in the notice. There are II categories ofmembers of the National Executive Committees. The membership in allparts of the island would run to several hundreds. The time at which thislarge group met after the working committee met at 3 p.m. is not given.Everything pointed to one conclusion namely an unseemly hurry to expelthe petitioners from the party. The National Executive Committee meetingheld on 26.6.94 was not duly convened. The National ExecutiveCommittee acted without jurisdiction and therefore the expulsions wereinvalid.
There was procedural ultra vires as there was no compliance with Article7:4:3 (f) of the Party Constitution. This Article provides that where the partysecretary is satisfied that a member has acted in breach of party policy ordiscipline he shall serve a copy of the charge sheet on the accused member whoshall be given an opportunity of showing cause against the accusation.Thereupon a report shall be forwarded to the disciplinary committee for inquiry.The disciplinary committee shall after inquiry, convey its decision to the workingcommittee, while the party secretary is required to forward the report (of theworking committee) to the National Executive Committee. After consideration ofthe report, the National Executive Committee has the power either to expel amember or take any appropriate disciplinary action. A member aggrieved withthe decision of the National Executive Committee has the right to appeal to theparty convention.
Procedural rules govern the conduct of bodies exercising authority in how theyexercise their powers. Where rules governing expulsion have been laid down, theaccused members have a right to demand that those rules be followed. Failure tofollow rules laid down will render the expulsions invalid. It is not open for therespondents to say that the petitioners were aware of the consequences of non-compliance with the directions given in the covering letter accompanying theresolution which was intended to be presented to the Chairman of the WPC andthat therefore petitioners had no legitimate expectation of a hearing. Thelegitimate expectation principle has no application where the petitioners alreadyenjoy the protection provided in the Constitution to a due inquiry. That principlehas relevance only if the petitioners had no right of hearing. The same conditionapplies to the contention that an inquiry would have been a useless formality.Besides, membership of a political party cannot be equated to an office held atpleasure, in which event there would not have been a right of hearing beforedismissal. The “no injustice or no real prejudice' justification arises in a casewhere the offenders are dealt with summarily but afforded a right of appeal and
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in fact that right was availed of. The hearing before court is not an adequateantecedent hearing.
There was a breach of natural justice in denying the right to be heard in answerto the charges of alleged misconduct. The duty to give a fair hearing is as much acanon of good administration as of good legal or judicial procedure. It makes nodifference that the duty to comply with natural justice arises from contract, andnot from statute. The power of expulsion is subject to the principles of naturaljustice.
The material before court was insufficient to conclude that the petitioners hadacted contrary to any provision of the Constitution which warranted theirexpulsion,
The burden of satisfying the court that the expulsion of the petitioners wasvalid lay on the respondents. They sought to discharge the burden, mainly byharping on the conduct of the petitioners after their expulsions. This court isconcerned only with the validity of the expulsion as it stood on that date. Thisnecessarily means that the reasons that have to be considered by the court arethose that have been adduced prior to the expulsion only.
The respondents failed to satisfy the court that they had the necessaryjurisdiction, followed the proper procedure, observed the principles of naturaljustice or had a plausible case for expelling the petitioners.
Cases referred to:
Dissanayake and Others v. Kaleel and Others S.C. (Special) Nos 4-11/91 S.C.Minutes of 3.12,91.
Tilak Karunaratne v. Mrs. Bandaranaike and Others S.C. (Special) No. 3/93.
Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147,195.
APPLICATION under and in terms of section 63 of the Provincial CouncilsElections Act No. 2 of 1988.
R. K. W. Goonesekera with J. M. S. Nanayakkara for petitioners in C.A. 513-SI 6/94).
Ranjan Gooneratne for petitioners in C.A. 520-523/94.
Nigel Hatch for 1 to 9 respondents in C.A. 513/94
Chula de Silva PC. with Nigel Hatch and M, Mahroof for 1 to 9 respondents inC.A. 513-516, 520-523/94.
Cur. adv. vult.
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October 7,1994.
THE FOLLOWING ORDER OF COURT WAS READ BY S. N. SILVA, J. (P/CA)ORDER OF COURT
The eight petitioners who are members (councillors), of theProvincial Council of the Western Province, (WPC) applied to thisCourt in terms of section 63 of the Provincial Councils Elections ActNo. 2 of 1988, challenging their expulsion from the 9th respondentDemocratic United National Front, (DUNF) which is a recognizedpolitical party. Since the petitions are based on identical facts andlaw, the parties agreed that all eight applications be argued anddecided together,
The FactsAt the times material to these applications, the 1st to 3rdrespondents were the acting leader, acting general secretary and thetreasurer respectively, of the DUNF. The 4th to 8th respondents weremembers of the working committee, who constituted the disciplinarycommittee that inquired into the conduct of the petitioners.
One Premaratne Gunasekera, who was one of seventeenmembers of the WPC elected on the DUNF ticket, held the post ofMinister of Health and Fisheries of the Provincial Administration. Onor about the 22nd May 1994, he was removed from that office by theGovernor of the WesterVi Province. A meeting of the members of theWPC belonging to the DUNF, (group) was held on 7.6.1994, at whichthe removal of the said Premaratne Gunasekera from office wasdiscussed. It was decided at that meeting, that no member of theDUNF group should accept the post vacated by PremaratneGunasekera. Any member of the DUNF group acting against thisdecision was to face disciplinary action. A further meeting of thegroup was fixed for 11.6.94. On that day, a meeting of the workingcommittee of the DUNF preceded the meeting of the group. At themeeting of the working committee, it was unanimously resolved torequest the chairman of the WPC in writing, signed by all members ofthe group, for a debate on the conduct of the Chief Minister indismissing Premaratne Gunasekera from his office. It was also
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resolved that all members of the group should speak and vote infavour of the resolution condemning the conduct of the Chief Minister.Any member failing to sign the resolution, speak and vote in favour orabstaining from voting, was to be considered as acting contrary tothe party Constitution and conventions and liable to be expelled fromthe party.
At the DUNF group meeting that followed soon after, only eight ofthe seventeen members were present. That number did not includeany of the petitioners. The members present ratified the decisions ofthe working committee. The group decided to send a copy of theresolution prepared on the basis of the proposals of the workingcommittee to all members of the group for their signature. Themembers were required to return the signed text of the resolution tothe acting general secretary on or before 19.6.1994. An Englishtranslation of the resolution (P5), addressed to the Secretary of theWPC is as follows:
DEMOCRATIC UNITED NATIONAL FRONTColombo 3.
1994.06.11.
Secretary,
Western Provincial Council,
Kachcheri Complex,
Colombo 12.
Resolution condemning the removal of PremaratneGunasekera from the Office of Minister.Sir,
I, a member of the working committee and the DUNF groupof the Western Provincial Council, propose that the WesternProvincial Council do strongly condemn the authoritarian andunconventional conduct of Mrs. Chandrika Kumaranatunga, theChief Minister of the Western Provincial Council, who motivatedby personal animosity, without prior intimation to either thePeople’s Alliance or the Democratic United National Front, and
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in the absence of any request by a councillor of the DUNF,decided to remove Mr. Premaratne Gunasekera of the DUNFfrom the ministerial post in the administration of the WesternProvincial Council, established after the Provincial CouncilsElection, consequent to an agreement amongst the leaders ofthe People's Alliance and the DUNF, following discussionsinitiated by Mrs. Sirima Bandaranaike.
Thanking You,
Yours faithfully,
Name of MemberWestern Provincial Council.
A covering letter was sent along with the above text to eachmember of the DUNF group by the acting secretary, a translation ofwhich read:
DEMOCRATIC NATIONAL UNITED FRONTNo. 10,28th Lane.Colombo 12.1994.6.17.
Registered post.
Name of Councillor.
Enclosed is a resolution unanimously adopted by the workingcommittee of the DUNF, at a meeting held on 1.6.1994 at 10.30a.m. at the party headquarters. I
I kindly request you to sign on the dotted line above your nameand arrange for me to receive the same by registered postbefore 1994.6.19.
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I also inform you that the above decision of the working
committee was unanimously approved by the DUNF councillors
of the WPC at the group meeting held the same day at 11.00
a.m.
Thanking you,
Yours faithfully,
Chandra Gankanda
Acting Secretary.
(The resolution is forwarded herewith for your signature)
It is to be noted at this stage, that the text of the resolutionforwarded to the councillors for signature is not the same as thatwhich was adopted by the working committee. The resolution whichwas sent to the councillors for signature was adopted by the eightcouncillors who were present at the group meeting on 11.6.1994.Hence, what was stated in the covering letter is factually incorrect,(c.f. x 4 and p4). ft is also important to note, that the petitioners werenot present at that meeting.
It is conceded that the petitioners did not carry out the instructionsgiven in the covering letter above.
On 26.6.1994, a meeting of the disciplinary committee comprisingthe 4th to 8th defendants, was held at the party headquarters at10.00 a.m. (x5A). The committee unanimously decided that thepetitioners had deliberately acted contrary to the decisions taken bythe DUNF group on 11.6.1994, in not carrying out the instructions inthe letter addressed to them by the acting secretary. The committeeunanimously concluded that the petitioners by their conduct wereguilty of a grave breach of discipline and recommended that severeaction be taken against them. The disciplinary committee withoutnaming any persons, also recommended that disciplinary action betaken for requesting the Chief Minister, Chandrika Kumaranatunga, toremove Premaratne Gunasekera from the ministerial post, asreported in the “Lankadeepa” newspaper of 11.6.94.
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At a meeting of the working committee, held on the same day at3.00 p.m. (X5B), it was disclosed that seven members of the groupincluding Premaratne Gunasekera had signed the resolution and the8 petitioners had failed to do so. There is no record as to what theother two members of the group had done. The report of thedisciplinary committee was tabled at this meeting. After discussingits contents at length, the working committee decided unanimously toexpel the petitioners from the DUNF.
The National Executive Committee of the DUNF met the same day(X5C). The time of the meeting is not recorded in the minutes. Theacting secretary had presented the report of the disciplinarycommittee at this meeting. It is reported that the petitioners had beenfound guilty on two counts by the disciplinary committee. For thereason stated earlier, this is clearly erroneous, (c/f X5A). It is recordedthat after lengthy discussions the executive committee decidedunanimously to expel the petitioners from the DUNF, and adeclaration to that effect was made by the acting secretary.
The acting secretary, the same day, informed the petitioners byletter (P6) that:
by failing to sign the text of the resolution forwarded with thecovering letter dated 11.6.94 before the 19th June ’94,
by requesting the Chief Minister of the WPC, as disclosed byher in a press release to the "Lankadeepa", to remove PremaratneGunasekera from the post of Minister, without prior discussionswith party leaders or the DUNF group of the WPC,
the disciplinary committee had decided that each of thepetitioners had contravened the provisions of the several articles inthe party Constitution and therefore, recommended to the workingcommittee to take disciplinary action against them. The actingsecretary’s letter stated further, that the working committee haddecided to expel each of the petitioners from party membershipand office held in the party and that this decision was ratified bythe executive committee.
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and Others (S. N. Silva. J. P/CA)
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The petitioners filed these applications inter alia, to have theexpulsion from membership of the DUNF declared invalid under theprovisions of section 63(1) of the Provincial Councils Elections ActNo. 2 of 1988.
Jurisdiction of the Court of AppealThe proviso to section 63(1) of the Provincial Councils ElectionsAct. confers on the Court of Appeal, a similar jurisdiction as thatconferred on the Supreme Court by the proviso to Article 99(13) (a) ofthe Constitution in relation to members of Parliament. This court iscalled upon to determine whether the expulsion of a member of aProvincial Council from membership of a recognized political party isvalid or not. If the expulsion is declared valid, such member will losehis right to continue as a member of the Provincial Council and hisseat will become vacant from the date of the determination. Thesection is therefore clearly intended to protect a member of thecouncil, duly elected by the people or upon nomination by a politicalparty, from being denied the right to continue as a member except onvalid grounds. Fernando J. in Dissanayake & Others v. Kaleel andOthers(l> expressed his view on the extent of the Supreme Court’sjurisdiction under Article 99(13) (a) thus:
"Our jurisdiction under Article 99 (13) (a) is not a form of judicialreview or even of appeal, but rather an original jurisdictionanalogous to an action for a declaration, though it is clearly not arehearing. Are we concerned only with the decision makingprocess or must we look at the decision itself. Article 99 (13) (a)requires us to decide whether the expulsion was valid or invalid.Some consideration of the merits is obviously required … Theburden, if any must be on the respondents, for it is the denial ofnatural justice by them which has resulted in these proceedings. Ihave therefore to consider whether on the merits the respondentshave shown that the decision was a good one, thereby disentitlingthe petitioners to relief."
Dheeraratne J. in Tilak Karunaratne v. Mrs. Bandaranaike andOthers12'was more specific in describing the scope of the court’sjurisdiction.
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“It is not disputed that court’s jurisdiction includes an investigationinto the requisite competence of the expelling authority; aninvestigation as to whether the expelling authority followed theprocedure if any which was mandatory in nature, an investigationas to whether there was a breach of principles of natural justice inthe determining process; and an investigation as to whether in theevent of the grounds of expulsion being specified by way ofcharges at a domestic inquiry, the member was expelled on someother grounds which were not so specified."
It is clear from what has been stated in the judgments cited, thatthis court in exercising the jurisdiction conferred on it by section 63 ofthe Provincial Councils Elections Act, should inquire whether theexpelling body had (I) acted within its jurisdiction, (II) followed theprocedure laid down in the Constitution of the party, (III) acted incompliance with the principles of natural justice before taking thedecision to expel the petitioners and (IV) whether the groundsadduced for expelling the petitioners could be sustained and (V)whether their alleged misconduct if proved, merited the extremepunishment meted out to them.
Jurisdictional ultra vires
The test of jurisdictional vires namely, to find out whether thedecision taken by anybody is lawful or unlawful is to secure legality -in other words to preserve the rule of law, of which the court is theproper guardian – (Wade-Administrative Law, 5th Ed P249). Lack ofjurisdiction may arise in many ways. There may be an absence ofthose formalities or things which are conditions precedent to thetribunal having any jurisdiction to embark on an inquiry. Or thetribunal may at the end make an order that it has no jurisdiction tomake. Or in the intervening stage, while engaged on a proper inquiry,the tribunal may depart from the rules of natural justice; or it may askitself the wrong questions, or it may take into account matters which itwas not directed to take into account. Thereby it would step outsideits jurisdiction. Per Lord Pearce – Anisminic Ltd. v. ForeignCompensation Commission 01.
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and Others (S. N. Silva, J. P/CA)
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It is submitted by the petitioners that the disciplinary committeethat purportedly inquired into their conduct was not constitutedaccording to the party Constitution, in that article 7:6: provides for afive member disciplinary committee to be appointed by the workingcommittee with the sanction of the National Executive Committee. Or,in the alternative, the working committee may appoint an ad-hocdisciplinary committee under article 7:5:2 (d).
The respondents concede that there was no disciplinarycommittee appointed under article 7:6 at the relevant time. However,they submit that a reconstituted disciplinary committee wasappointed by the working committee in May 1994, but theappointment had not received the approval of the national executivecommittee. The respondents have not sought to argue that thedisciplinary committee which inquired into the conduct of thepetitioners was an ad-hoc committee, for the very good reason thatno working committee meeting was held between 12.6.94 and25.6.94. Thus it is clear, that the disciplinary committee whichrecommended that action be taken against the petitioners had nopower to do so, as it was not appointed according to the partyConstitution.
Article 7:4:3: empowers the National Executive Committee alone totake disciplinary action against a member of the party. At the meetingol the working committee on 26.6.1994 (X5B), the report of thedisciplinary committee was tabled by its chairman. The workingcommittee had thereafter unanimously decided to expel thepetitioners from the party, which it had no power under theConstitution to do. Besides, the item of the expulsion of thepetitioners has been taken up as a matter arising from the minutes ofthe last meeting of the working committee. This is not permitted,since notice of such an important matter had to be given to all itsmembers prior to the meeting. The petitioner in CA 513/94, who isalso a member of the working committee, has produced marked XI,along with the papers filed with his application, the telegram receivednotifying him of the meeting scheduled for 26.6.94 at 3,00 p.m.According to letter dated 27.6.94, issued by the Chief TelegraphMaster. C.T.O. (X2), the telegram was handed over by the sender at1.25 p.m. on 25.6.94 being a Saturday, and was delivered on 27.6.94being the next Monday. It should be obvious to any sensible person
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that when a telegram is dispatched on a Saturday afternoon, it wouldnot be received before Sunday to enable the recipient to attend thescheduled meeting on Sunday. It is thus seen that the actingsecretary sent the notice to the petitioner (by telegram), informinghim of the meeting, at which a decision as to disciplinary actionagainst him was taken, in such a way that it would be received byhim after the meeting is held.
The National Executive Committee which has power under article7:4:3:(f) to expel a member on a report by the disciplinary committeecomprises the persons mentioned in article 7:4, It is of utmostimportance that when a serious decision affecting the status ofmembers of the party who were councillors of the WPC is taken, thatall formalities necessary to ensure their presence at its meeting on26.6.94 were followed, The petitioners submit that this has not beendone, In support they have filed the affidavits of persons, who as ex-officio members, should have been given notice of the meeting,stating that they had received no notice. The petitioners beingmembers of a Provincial Council are ex-officio members of thecommittee in terms of Article 7:4:111. Their clam that they did notreceive notice of this meeting is not disputed. The minutes of themeeting (X5C), do not state at what time the meeting commenced or atwhat time it was adjourned. Nor does it say what the agenda for theday was. No reference is made to the number of members present orthose who had sent letters of excuse. Although the minutes state thatthere was a lengthy discussion on the report of the disciplinarycommittee no mention is made of the speakers for or against theadoption of the report. In terms of Article 7:4 of the Constitution thereare 11 categories of members of the national executive committeeincluding all organisers and secretaries of party organisations in eachA.G.A.’s division. Membership should run to several hundreds. Thequestion looms large as to the time at which this extensive group ofpersons met. According to the time frame given by the respondents, itshould have been after the meeting of the working committee whichmet at 3 p.m. was concluded. It is in this context that learned counselfor the petitioners speculated the meeting was held late at night!
As noted above, no evidence was adduced by the respondents,(which is necessary considering the specific challenge made by the
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petitioners), as to the fact of issuing notices on the members of theNational Executive Committee and the agenda of the meeting said tohave been held on 26.6.94. it appears from the minutes producedthat the main subject for discussion at the meeting was the matter ofdisciplinary action against the petitioners. According to the minutes(paragraph 4 of X5C), item 2 of the agenda dealt with this matter. Thedisciplinary committee which met to consider the matter ofdisciplinary action in the first instance, met on the same day at 10.00a.m. Therefore, item 2 of the agenda, under which the report of thedisciplinary committee was discussed, could only have beenincluded after the proceedings before the disciplinary committeewere concluded. The irresistible inference is that members of theNational Executive Committee, numbering several hundreds andspread throughout the country, did not have notice of the agenda.Probably, they did not have notice of the meeting said to have beenconvened. These matters lend strong support to the submission ofcounsel for the petitioners that the minutes (X5C), are a sham andthat the meeting of the National Executive Committee said to havebeen held on 26.6.94 is fictitious.
The respondents in their objections have glossed over theseserious defects in the manner in which the meeting was conducted.The 8th respondent who presided at the meeting, was a member ofthe disciplinary committee. He has filed an affidavit with theobjections. But he has not refuted the allegations of the deponentswhose affidavits have been filed to the effect that those entitled to bepresent at the National Executive Committee meeting had not beenduly notified of it. The respondents could at the least have producedthe attendance register to rebut the deponents, which they havefailed to do. These matters and the fact that all three bodiesresponsible for the expulsion of the petitioners met on one day andthe fact that the letters of expulsion were sent out the same day, pointto one conclusion, namely, that they were in an unseemly hurry toexpel the petitioners from the party.
It is evident from the affidavit filed by the 8th respondent that therewas a fear, the petitioners and others who filed affidavits wouldoppose the expulsion of the petitioners from the party. For instance,paragraph 37 of the affidavit after referring to several cases filed in
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the District Court of Colombo, states: "I submit that the aforesaidcases were instituted maliciously and fraudulently without just causeto inter alia destabilise the DUNF and cause chaos and confusion inthe said party, and emasculate and/or render the party impotent." Atparagraph 38(b) he continues, “at all material times material to thispetition the petitioner and a minority group of the DUNF whichincludes the other petitioners and Ediriweera Premaratne, MontyGopallawa and P, B. G. Kalugalla, who are now members ofParliament representing the PA, were planning to form a rival politicalparty and/or supported and joined a rival political party, namely thePA, contrary to the decision of the DUNF." These statements reflectan interest in the 8th respondent in keeping the petitioners and like-minded persons out of party meetings.
From what the 8th respondent has disclosed, it is clear thepetitioners have been expelled, not on the charges framed againstthem, but for other extraneous reasons which neither the disciplinarycommittee nor the National Executive Committee had the jurisdictionto do. The petitioners have filed their applications inter alia, on thespecific basis that the meeting of the National Executive Committeesaid to have been held on 26.6.94 was not duly convened. They haveadduced facts and circumstances that support this complaint. Therespondents have failed to adduce any cogent evidence to supporttheir claim that the meeting was duly convened. As noted above, theminutes of the meeting produced by the respondents raises morequestions than what it seeks to answer, In the circumstances, we arecompelled to conclude that the National Executive Committee actedwithout jurisdiction and therefore the expulsions of the petitionerswere invalid.
Procedural ultra vires
Procedural rules govern the conduct of bodies exercising authorityin how they exercise their powers. A democratic form of governmentpresupposes that electors are free to form political parties. They aretherefore by nature, voluntary organisations. Membership will bedependent on a set of rules or constitution. In other words, a personjoining a political party will be entering into a contract with the partyto be governed by the party rules on constitution. He will continue tobe a member so long as he adheres to the rules or constitution. Thus,
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where rules are laid down governing their expulsion, they have a rightto demand that those rules be followed. Failure to follow rules laiddown, will render the expulsion invalid.
Membership of the DUNF is open to those over 16 years of age,upon the payment of an annual subscription. Article 6:2 sets out therights and obligations of a member. Article 7:4:3:(c) enjoins allofficials and members of the national executive committee to followthe party constitution and the standing orders.
Article 7:4:3:{f) provides that where the party secretary is satisfiedthat a member has acted in breach of party policy or discipline, heshall serve a copy of the charge sheet on the accused member, whoshall be given an opportunity of showing cause against theaccusation. Thereupon a report shall be forwarded to the disciplinarycommittee for inquiry. The disciplinary committee shall after inquiry,convey its decision to the working committee, while the partysecretary is required to forward the report (of the working committee)to the National Executive Committee. After consideration of thereport, the National Executive Committee has the power either toexpel a member or take any appropriate disciplinary action. Amember aggrieved with the decision of the national executivecommittee has the right to appeal to the party convention.
The respondents assert that the procedure set out in article7:4:3:(f) of the Constitution need not have been followed. They claimthat the provisions of that article do not apply to the petitioners asthey were aware of the consequences of non-compliance with thedirections given in the covering letter accompanying the resolutionwhich was intended to be presented to the chairman of the WPC. Inthe circumstances, the respondents submit that the petitioners hadno legitimate expectation of a hearing; a hearing was a uselessformality and no real prejudice was caused to the petitioners by thelack of a hearing. They plead further that in any event, the petitionershave not defended their conduct and they are now afforded asubsequent hearing, and that their prompt expulsion is justified.Implicit in the objections of the respondents is that no charge sheetwas served on the petitioners by the party secretary and noexplanation called for. The secretary has not forwarded the relevant
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report, as required by the Constitution to the disciplinary committee,for it to commence an inquiry against the petitioners.
Fernando, J. in Dissanayake {supra) has lucidly dealt with all thegrounds adduced by the respondents for not holding an inquiry asrequired, prior to the expulsion of the petitioners. At the outset, it mustbe noted that the facts in Dissanayake (supra), were significantlydifferent from the facts of the present case. The Constitution of theUNP unlike that of the DUNF has no specific procedure laid down todeal with disciplinary matters and the expulsion of members.Therefore, the defences adduced by the respondents do not apply toa situation where express provision is made to the contrary. However,for the sake of completeness, each of the defences is dealt with,though not in detail. The “legitimate expectation” principle has noapplication where the petitioners already enjoy the protectionprovided in the Constitution to a due inquiry. That principle hasrelevance only if the petitioners had no right of hearing. The samecondition applies to the contention that an inquiry would have been auseless formality. Besides, membership of a political party cannot beequated to an office held at pleasure, in which event there would nothave been a right of hearing before dismissal. The “no injustice or noreal prejudice’ justification arose in a case where the offenders weredealt with summarily but afforded a right of appeal and in fact thatright was availed of. The respondents contend that the presenthearing before this court is an adequate “antecedent hearing".Fernando, J. has emphatically rejected such a claim in Dissanayake(supra), in these terms. “It is vital that the procedure as a whole mustgive the individual an opportunity for a fair hearing. What has beensaid above about “hearing” and “appeals’ does not apply at all toapplications for judicial review or proceedings under article99(13Xa)… Further, the proceedings before us cannot in any way beconsidered a “rehearing let alone a “full rehearing". Procedural andtime constraints prevented a full investigation by this court. . ,Therefore, I hold that the constitutional remedy under Article99(13)(a), does not relieve the party of the duty to afford anantecedent hearing in disciplinary matters, and does not cure thelack of a hearing. “As for the claim of "no evidence" or “open andshut case" principle which the respondents plead, it is clear, giventhe opportunity, the petitioners would not have had much difficulty in
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advancing a credible explanation for not signing the resolution.Therefore, the respondents by not following the provisions of theparty constitution in not holding a proper inquiry prior to the expulsionof the petitioners, have themselves acted in breach of it, therebyrendering the expulsions invalid.
Breach of Natural JusticeThe petitioners have pleaded that there was a breach of theprinciples of natural justice in denying them the right to notice of thecharges of alleged misconduct against them, and the right to beheard in answer to those charges by an unbiased tribunal. Therespondents reply that non-compliance of the directive of the ActingGeneral Secretary to sign the resolution was a contumacious, flagrantand manifest violation of the petitioners’ obligation to the DUNF.
Justice Kulatunga, in Dissanayake {supra), observed that “the rightof a M.P. to relief under Article 99(13)(a) is a legal right and formspart of his constitutional right as a M.P. If his complaint is that he hasbeen expelled from membership of his party in breach of the rules ofnatural justice, he will ordinarily be entitled to relief; and this courtmay not determine such expulsion to be valid unless there areoverwhelming reasons warranting such decision. Such decisionwould be competent only in the most exceptional circumstancespermitted by law and in furtherance of the public good the need forwhich should be beyond doubt."
The respondents then need to satisfy this court that their failure tofollow rules of natural justice could be justified. In other words, showthat the non-compliance of the Acting General Secretary's directiveconstituted an exeptional circumstance warranting the expulsionwithout a hearing or that the expulsion of the petitioners was for thepublic good. The test that has to be applied is an objective test andnot a subjective test. The respondents have not placed any materialbefore this court to satisfy this objective test that an overwhelmingreason or exceptional circumstances existed which merited theexpulsion of the petitioners or that it was done for the public good.
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‘Expulsion from an organisation inevitably creates suspicion ofserious misbehaviour of some kind, according to the rules, beliefs orcustoms of the group concerned. An individual should have ahearing before his reputation is so damaged. Moreover, becauseexpulsion is usually on the ground of a specific misdemeanour, aright to a hearing is important because it may enable the charge tobe rebutted . . . There are at least three justifications for requiring ahearing even where there appears to be no answer to a charge. First,experience shows that unanswerable charges may, if the opportunitybe given answered; inexplicable conduct be explained. Secondly,the party condemned unheard will feel a sense of injustice. Thirdly,suspicion is inevitable that a body which refuses a hearing beforeacting does so because of lack of evidence not because of itsstrength." (Natural Justice-Paul Jackson Pp 211&137).
Here, the gravity of the consequences is the test for theapplicability of natural justice as opposed to the test of "a duty to actjudicially’ or the test of “fairness".
“Two principles which pre-eminently, are generally thought to benecessary to guarantee that the law, or any body of rules is appliedimpartially and objectively – and hence justly – are that no manshould be judged without a hearing and that every judge must befree from bias, or as they are often cited in the form of latin tags, audialteram partem and nemo iudex in re sua. It is not possible toproduce an exhaustive list of the rules of natural justice in the formalsense, or the requirements of the rules because the rules of naturaljustice are a means to an end and not an end in themselves."(Jackson supra-P6).
It is implicit in the objections of the respondents that they had nointention of hearing the petitioners as the threat of expulsion wasclearly held out in the covering letter accompanying the resolution.Such an attitude on the part of the respondents, who as members ofthe DUNF, formed to fight authoritarianism, (vide: preamble to theConstitution), smacks of bad faith, and does no credit to themselvesor the party.
As Fernando, J. observed in Dissanayake (supra) ‘a decisionmade by an unbiased tribunal, after duly considering the views of
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those likely to be affected by it, is not only more likely to be correct,but will be more acceptable and of better quality. Fairness to theindividual facilitates a better decision by the tribunal. The duty to givea fair hearing is as much a canon of good administration as of goodlegal or judicial procedure . . . These applications are not forcertiorari, and hence it makes no difference that the duty to complywith natural justice arises from contract, and not from statute. I holdthat the power of expulsion contained in rule 8(3)(a) is subject to theprinciples of natural justice."
Applying the ratio of Dissartayake (supra), to the facts of theseapplications, it is obvious that the respondents have failed to observethe principles of natural justice, as such the expulsions cannot besupported.
Merits of the CaseThe reasons given for the expulsion of the petitioners were, (1)failure to sign the resolution, and (2) requesting the Chief Minister asreported in the “Lankadeepa" to remove Premaratne Gunasekerafrom his ministerial post. On these two charges, the disciplinarycommittee had found the petitioners having deliberately acted inbreach of articles 6:5:1, 6:5:2, 6:5:3 and 6:5:5 of the partyConstitution. Article 6:5 deals with the duties and obligations of themembers. Article 6:5:1 binds a member to popularise the partyamongst the public, work towards propagating the party aims andaspirations, defend party policy and decisions. Article 6:5:2 enjoins amember to observe the party rules and conventions and conducthimself in a disciplined manner. Article 6:5:3 requires a member toact according to the constitution and standing orders. Article 6:5:5restrains a member from bringing the party to disrepute or acting in amanner which brings it disrepute or engaging in political or otheractivity which is in conflict with the undertakings stipulated.
The report of the disciplinary committee makes no reference to anyarticle in the party constitution. The respondents have not been ableto enlighten this court as to what article of the Constitution thepetitioners have contravened, in failing to place their signature on adocument containing serious allegations against the Chief Minister,
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who is supported by the “Government Group" consisting of DUNFmembers as well, under threat of expulsion. However, article 13:2:1Vpermits a member to express his views at a group meeting on anymatter which may come up at a council meeting, but he is bound tovote in the council and act according to a decision taken by thegroup. But this stage had not been reached. It was conceded thateven up to the time of this hearing, the resolution had not beenpresented for debate. In the circumstances, there is insufficientmaterial before this court to conclude that the petitioners had actedcontrary to any provision of the constitution which warranted theirexpulsion.
The letter of expulsion states that the working committee actingunder article 7:5:2(g), 13:2:1V and 20:1, decided to expel thepetitioners. Article 7:5:2:(g) requires the working committee toexercise powers and perform duties conferred on it by theConstitution. Article 13.2:1V requires a member to vote as statedearlier. Article 20:1 deals with casus omissus situations. None ofthese articles gives the working committee the right to expel amember from the party.
The resolution which the petitioners did not sign, containsunverified and obnoxious references to the Chief Minister. Noresponsible individual could have expected the petitioners, ascouncillors, to sign such a document and forward it to the secretaryof the party, who himself was not a member of the WPC. Theresolution itself was addressed to the chairman of the WPC.
The second ground on which the petitioners were expelled wasbased on an unverified newspaper report. It is significant that therespondents have not produced a copy of it in these proceedings.There is no reference in the report to any of the petitioners. Therespondents argue that if the petitioners were in fact innocent of whatwas reported, they should have taken steps to deny it. What therespondents fail to explain is, why anyone should contradict a reportwhich gives no names. On the other hand, none of the respondentshas contradicted the report either. To expel a member from a party onsuch a newspaper report is most reprehensible. Furthermore, thereport of the disciplinary committee nowhere states that it found the
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petitioners guilty of this charge. It appears from the manner in whichthe report (X5A), has been prepared, that this charge has beenadded as an afterthought.
The basis of the expulsions is the failure on the part of thepetitioners to carry out the instructions of the acting generalsecretary. It is submitted that every member of the DUNF is bound toadhere to any decision taken by, or carry out, any directive given bythe working committee or the group. This argument is based on the“cog in the wheel theory" expounded by Sharvananda, C.J. inAbeywardene v. Abeywardene <3). According to this theory, a partymember’s right to freedom of thought, conscience, speech andexpression, guaranteed by the Constitution is surrendered to theparty caucus. And once the party line is decided, the memberbecomes a rubber stamp for its decisions. This theory has not foundfavour in subsequent judgments of the Supreme Court. As Fernando,J. in Dissanayake (supra) stated, "I take the view that a member hasnot been reduced to the position of a mere cog in the party machinebereft of any independence of action." Kulatunga, J. in the samecase observed, "(a member) is not a lifeless cog liable to be subjectto unlawful or capricious orders or directions without remedy."Dheeraratne , J. In Tilak Karunaratne (supra) went further when heremarked, “I am unable to agree with the proposition, (cog in thewheel theory). If for instance, the party gives a direction to a memberin direct violation of fundamental policy of the party, is that membermeekly bound to obey such a direction? Or if the party gives adirection to a member in flagrant violation of a term of his contractwith the party, is such a member expected to tamely submit to thedirections? I am unable to subscribe to a proposition which tends todevalue the nature of the contractual bond of a political partyvis-a-vis member (and particularly a member of Parliament), to arelationship perhaps that of a master and servant."
The raison d'etre of a democratic party is the open discussion andexchange of views, functioning on the principle of each will have hissay and the majority will have its way. (vide: DUNF Constitution, BasicPrinciples (3)). Loyalty to and internal unity of a political party, cannotbe equated to a state of serfdom for its members. The petitionershave refused to bow down to the tyranny of the party caucus. Their
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conduct should have won the approbation of the leaders of the DUNFwhich professes to be democratic party, {vide: DUNF Constitution-Preamble), than be a cause for their being hounded out of it.
The facts point to the inescapable conclusion that the respondentswere predisposed to getting rid of the petitioners from the DUNF forgood reason or bad. Expulsion of the petitioners in suchcircumstances is unfounded and invalid.
ConclusionAs observed earlier, the burden of satisfying this court that theexpulsion of the petitioners was valid lay on the respondents. Theysought to discharge this burden, mainly by harping on the conduct ofthe petitioners after their expulsions. This court is concerned onlywith the validity of the expulsion as it stood on that dete. Thisnecessarily means that the reasons that have to be considered bythis court are those that have been adduced prior to the expulsiononly. It is argued, that since an expelled member continues, de jure,to be a councillor until the determination of this court, if he actscontrary to party policy during the interim period, such conduct is arelevant consideration to be taken into account in the finaldetermination. This submission cannot be supported on a reading ofsection 63 of the Provincial Councils Elections Act. The action givesthe right to an expelled member to make an application to this courtby way of petition, within one month, challenging the validity of theexpulsion. By necessary implication, this court has to inquire into thecharges that prompted the expulsion only. If not, what has been saidon the jurisdictional, procedural vires, natural justice and merits, willhave no application. If there is subsequent conduct on the part of amember which merits expulsion, there is no impediment againstholding a fresh disciplinary inquiry on those charges and dealing withthe recalcitrant member according to the provisions of the partyconstitution. Such a burden cannot be passed on to this court. Norhas this court the jurisdiction to take on such a task.
The respondents have failed to satisfy this court that they had thenecessary jurisdiction, followed the proper procedure, observed the
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principles of natural justice or had a plausible case for expelling thepetitioners. We therefore declare the expulsions of the petitioners tobe invalid. The applications of the petitioners are allowed with costs.
S.N. SILVA, J. President of the Court of Appeal.R.B. RANARAJA, J.HECTOR YAPA, J.Applications of the petitioners allowed.