023-SLLR-SLLR-2006-V-1-AMEER-ALI-AND-OTHERS-vs.-SRI-LANKA-MUSLIM-CONGRESS-AND-OTHERS.pdf
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Ameer Ali and Others vs Sri Lanka Muslim Congress and Others
189
AMEER ALI AND OTHERSVS
SRILANKA MUSLIM CONGRESS AND OTHERS
SUPREME COURT,
S. N. SILVA, CJ,
JAYASINGHE, J,
UDALAGAMA, J,
DISSANAYAKE, J ANDFERNANDO, J,
SC (EXPULSIONS) NO. 2/2005 WITH SC (EXPULSIONS) NOS 3 AND 4/200531 ST MAY AND 3RD AND 7TH JUNE, 2005.
Constitutional Law- Article 99(13) (a) of the Constitution – Explosion from politicalparty – Mala fides, bias and failure of natural justice – Invalidity of expulsions -Policy of SLMC- Alleged failure to sign a pledge of loyalty to SLMC and itsleader – Burden of proof to adduce evidence to support allegations againstpetitioners.
The petitioners in Applications Nos. 2 and 3/05 contested the Parliamentaryelections as SLMC candidates and were elected to the Batticaloa andTrincomalee Districts respectively. The petitioner in Application No. 4/05, aSLMC member contested the Wanni District as a UNP candidate and waselected as Member of Parliament for that District, in terms of an electoral pactbetween the SLMC and the UNP.
The petitioners supported the then President's National Advisory Councilfor Peace and Reconciliation and were appointed Project Ministers forBatticaloa, Trincomalee and the Wanni Districts respectively. This resulted in aletter by the 3rd respondent, Secretary, SLMC addressed to the petitionerscalling upon them to sign a pledge of loyalty to the SLMC and its leader (the2nd respondent) and the High Command, and to follow their policies anddirections. The petitioners severely criticized the leader and the party for notjoining the peace process to the detriment of Muslims.
Consequently, the 3rd respondent informed the petitioner that disciplinaryaction will be taken against the petitioners. The 2nd respondent denied theallegations against the SLMC and threatened disciplinary action against thepetitioners. The allegations by the petitioners against the SLMC includedcriticism for signing an amended electoral pact witht the UNP and allowingthree SLMC members to join the UNP.
In the absence of clarification as to who was the disciplinary authority, whetherit was the High Command of the politbureau as asserted by the 3rd respondentand criticism against the SLMC and its leader, the petitioners refused to attendan inquiry at a hotel and were summarily expelled from the SLMC by the HighCommand by letter dated 04.04.2005, and without hearing them.
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Held:
Notwithstanding a purported withdrawal of the letters of expulsions by the 3rdrespondent on 28.05.2005 whilst the petitions were pending –
The Supreme Court had jurisdiction to determine the validity ofexpulsions ;
The expulsions were contrary to natural justice, mala Fide and ultravires the SLMC constitution ;
Minutes of the meetings of the High Command and polibureau werenot produced in evidence. The burden of producing such evidencewas on the respondents;
The expulsion of the petitioner in Application No. 4/05 based on hispurported expulsion from the UNP was invalid ;
expulsions of the petitioners from their political party were invalid;
a Member of Parliament cannot be expelled from his party save oncogent grounds which are beyond doubt, in the public interest. Thebenefit of the doubt will be resolved in favour of the Member.
Cases referred to:
Tilak Karunaratne v. Sirimavo Bandaranaike (1993) Sri LR 91
Gamini Dissanayake v. M. C. M. Kaleel and Others (1993) 2 SriLR135, 234
APPLICATIONS challenging expulsions from party.
D. S. Wijesinghe, P. C. with Sanjeewa Jayawardena, Priyanthi Goonaratne,Kaushalya Molligoda and M. I.M. Azver for petitioners in Application Nos. 2/2005 and 3/2005
Wijayadasa Rajapase, P. C. with Kapila Liyanagamage and RasikaDissanayake for petitioner in Application No. 4/.2005
Romesh de Silva, P. C. with Harsha Amarasekera for 1st and 2ndrespondents in Application Nos. 2, 3 and 4/2005.
Ikram Mohamed, P. C., with A. A. M. Illias, Nizam Kariapper and PadmaBandara for 3rd respondent in Application Nos. 2, 3 and 4/2005
K.N. Choksy, P. C. with L. C. Seneviratne, P. C. Daya Pelpola, S. J. Mohideen,Ronald Perera and Shamila Amarawickrema for 4th, 5th and 6th respondentsin SC Application No. 4/2005.
I. Demuni de Silva, Senior State Counsel for 4th and 5th respondents is SCApplication Nos 1 and 3 of 2005 and for 7th and 8th respondents in SCApplication No. 4/2005
Cur.adv.vult.
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1st July 2005
JUDGMENT OF THE COURTThe Petitioner in application No. 2/2005 has been a member of the 1 stRespondent Party (SLMC). He contested the general election held in April2004, as a candidate nominated by the SLMC and vyas the only nomineeof the Party to be returned as a Member of Parliament for the BatticaloaDistrict.
The Petitioner in application No. 3/2005, has been a member of theSLMC and contested the general election held in April 2004, as a candidatenominated by the party and was returned as a Member of Parliament forthe Tricomalee District.
The Petitioner in application No. 4/2005 has been a member of theSLMC and was a nominee of the United National Party at the generalelection in April 2004, for the Wanni District. His name was included in thenomination paper of the United National Party on the basis of an electoralagreement with the SLMC and was returned as a Member of Parliament.
The three Petitioners have been expelled from the SLMC by lettersdated 4th April 2005, sent by the 3rd Respondent, being the SecretaryGeneral of the Party. Since the expulsions were effected by letters bearingthe same date and in view of the similarity in the relevant facts andcircumstances, it was decided to hear these matters together.
These Petitioners have filed applications in terms of the proviso toArticle 99 (13) (a) of the Constitution seeking declarations from this Courtthat their respective expulsions from SLMC and in the case of the Petitionerin application No. 4/2005, the consequential expulsion from the UnitedNational Party, are invalid and that the seats held by them in Parliamenthave not become vacant consequent to such expulsions.
The circumstances leading to the impugned expulsions are similar inrespect of all three applications. The Petitioners contend that they hadserious differences of views in regard to the manner in which the Memberselected from the SLMC should conduct themselves in Parliament, withthe 2nd Respondent, being the Leader of the Party. The charges on whichthe expulsions were made have a direct bearing on these differences.
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According to the sequence of events the first incident relevant to theexpulsions is a letter dated 5.10.2004, sent by the General Secretary ofthe Party requesting the Petitioners to sign a pledge in the specimen formthat was annexed, declaring loyalty and total allegiance to the Party, to itsLeader and the High Command. The pledge also required the person tofollow inter alia the policies and directions of the Leader and the HighCommand.
The Petitioners refused to sign the pledge and when they were calledfor explanations wrote letters dated 13.11.2004, stating, inter alia, that therequirement to sign the pledge is ultra vires the Constitution of the Partyand they also raised questions as to whether three members of the Partywere permitted to take membership of the United National Party, prior totheir being nominated as Members of Parliament.
In the interim period the Petitioners wrote a joint letter dated 25.10.2004,to the Leader of the Party (P7) setting out serious criticisms of the conductof the Leader in relation to the interests of the Party and of the Muslimcommunity who have reposed confidence in the Party. In particular theycriticized the decision of the Leader in not attending the meeting of theNational Advisory Council for Peace and Reconciliation (NACPR) convenedby Her Excellency the President to bring about a national consensus toachieve a just and durable solution to the ethnic problem that hasdevastated the country for more than two decades. They alleged that thefailure of the Leader to cooperate in the national endeavour will have aserious impact on the interests of the Muslims of the North and East, whohave been languishing in abject poverty and destitution in refugee campsfor several decades. Further, that the mandate they received at the electionwas to make use of every opportunity to work towards a viable solutionthat would encompass the just and reasonable aspirations of the Muslimsof the North and East. Accordingly, they informed the Leader that theywould extend their fullest support to the Government in its endeavour tofind a lasting solution to the problems identified by them which will benefitthe Muslims in particular and the country at large, in general.
Shortly thereafter the 3 Petitioners were appointed as Project Ministersfor Rehabilitation and Development for the Batticaloa, Trincomalee andWanni Districts, being the three Districts from which they have been elected.
The reply of the Leader to the Party is contained in a single letter dated
addressed to all three Petitioners, the contents of which wouldbe referred to later.
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The Petitioners thereafter received letters dated 19.11.2004 that weresimilary worded, requiring them to show cause as to why disciplinaryaction should not be taken against them, inter alia for any one or more ofthe following, summarized as follows:
failure to sign the pledge of allagiance to the Party and to theLeader;
the acceptance of the post of Project Minister;
The active support extended to the Government;
joining the ranks of the Government Members in Parliament
The letters have been signed by the General Secretary and state thatthe action is taken on a decision of the High Command.
The Petitioners were requested to show cause on or before 30.11.2004,and be present at a meeting of the High Command to be held at theheadquarters of the Party on 09.12.2004.
The Petitioners responded by letter dated 29.11.2004, requesting timeto answer and were granted an additional 10 days time and were requiredto be present at the meeting of the High Command scheduled for09.12.2004.
The Petitioners replied to the charges by letter dated 07.12.2004, denyingthe allegations and setting out most of the facts and circumstances includedin the letter previously addressed to the Leader referred to above. Theyfurther stated that there is no validly constituted High Command in forceand accused the General Secretary who wrote the letter that he would beliable to be dismissed from the Party in view of his signing the amendedelectoral agreement with the United National Party which had been disputedby the Petitioners in their previous correspondence.
By letter dated 20.12.2004, the Secretary General, disputed the contentsof the reply and informed the Petitioners that they could present their caseto the High Command and requested that a date be nominated in themonth of January, on which date the matter would be heard at one of theHotels that were specified.
It appears that no further action was taken in the matter until March2005, when letters dated 01.03.2005, was received by the Petitioners,signed by the Secretary General who informed them that the Politbureau
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will go in to the show cause notice at a meeting on 12.03.2005 to be heldat the Earls Court, Trans Asia Hotel at 5.00 p.m. The Petitioners wererequested to be present. Another letter was received by the Petitionerbearing the same date sent by the Secretary General requesting thePetitioner to be present on Sunday 13th March at 5.00 p. m. at the samevenue for a meeting of the High Command and at which meeting the HighCommand will go into the show cause notice that had been issued.
The Petitioners replied by letters dated 11.03.2005, referring to the twosets of Inquiries to be held by two bodies of the 1 st Respondent party andstated that they were puzzled as to how they have been summoned toface two disciplinary inquiries on two successive dates in respect ofallegations set out in one show cause notice The Petitioners sought specificclarification as to which particular body would seek to exercise disciplinarycontrol. Thereupon letter dated 14.03.2005 was sent by the GeneralSecretary to the Petitioners requiring them to be present at a meeting ofthe High Command to be held on 23.03.2005 at the Hotel specified aboveat 7.00 p.m.
The Petitioner responded by letter dated 21.03.2005, stating that theGeneral Secretary has failed to clarify the several fundamental issuesraised in letter dated 14.03.2005, and as such would not attend the meetingof the High Command on 23.03.2005. Thereupon the 2nd Respondentnotified the expulsion of the Petitioners by letter dated 04.04.2005, referredto above. It is claimed that the decision for expulsion has been taken atthe meeting of the High Command said to have held on 23.03.2005.
The Petitioners have challenged the expulsions on the following grounds :
that the decisions for expulsion have been made in violation ofthe principles of natural justice, without affording a proper hearingto the Petitioners at a time when they had raised serious issuesas to the particular body of the party that could exercisedisciplinary control;
that there are no grounds for the expulsion of the Petitioners,since they have acted at all times in the best interests of theSLMC, its collective membership and in keeping in mind theinterests of the Nation;
that the expulsions were mala fide and intended to victimize thePetitioners;
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that the expulsions lack bona tides, since 3 members of theParty have been permitted to take membership of the UnitedNational Party, in violation of the Constitution of the 1stRespondent party.
that the decisions have been activated through bias arising fromdifferences within the Party by a group hostile to the Petitioners.
After this Court issued notice on the Respondents and when pleadingswere completed, by letter dated 28.05.2005, addressed to the respectivePetitioners, General Secretary of the Party stated that the High Commandhas taken into consideration the statements in the affidavits filed in Courtand since the Petitioners have taken up the position that they were notafforded a hearing prior to adopting the extreme measure of expulsion, theHigh Command has decided to withdraw the expulsions communicatedby letter dated 04.04.2005 in order to give a further opportunity to presenttheir position before the Party. The withdrawal of the expulsions has alsobeen communicated by letter bearing the same date to the SecretaryGeneral of Parliament.
Counsel for the 1,2 nd and 3rd Respondents, being the Party, its Leaderand Secretary General, submitted that since the expulsions have beenwithdrawn it is unnecessary for this Court to make any decision as to thevalidity of the expulsions and that the proceedings should be accordinglyterminated. On the other hand, the Petitioners contended that the withdrawalof the expulsions is conditional and restricted only to one of the groundson which the expulsions have been challenged before this Court, namelythe failure to comply with the principles of natural justice. The Petitionerscontended that this Court should hear and determine the matter in itsentirety.
In terms of Article 99(13) (a) of the Constitution, where a Member ofParliament ceases by expulsion to be a member of a recognized party onwhose nomination paper, his name appeared at the time of becomingsuch Member of Parliament,his seat becomes vacant upon the expirationof a period of one month from the date of his ceasing to be such member.The proviso to the Sub-article states that the seat will not become vacantif prior to the expiration of one month the member applies to the SupremeCourt and this Court detemines in such application that the expulsion wasinvalid. It is to be noted that the withdrawal of the expulsion by the 3rdRespondent on behalf of the 1 st Respondent party was done on 28.05.2005,after a period of one month had elapsed from the date of the impugnedexpulsions. Thus the withdrawal was done at a time when this Court was
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seized with the matter and in terms of the proviso the seat will not becomevacant only if this Court makes a determination that the expulsion is invalid.Accordingly the withdrawal by the 3rd Respondent does not perse resultin a position where the expulsions become invalid and the Petitioners arecorrect in requesting a determination to be made by Court as to the invalidityof their expulsions.
The Petitioners submitted the letter seeking to withdraw the expulsionson the alleged non-compliance with principles of natural justice in arrivingat a decision to expel the Petitioners, and this should be taken as aconcession on the part of the 1 st, 2nd and 3rd Respondents of this groundof invalidity.
The sequence of events outlined above reveals that serious differencesof views had arisen between the Petitioners, who were elected from 3different Districts, presumably on the basis of the support extended by thevoters of the respective Districts to the cause of the 1 st Respondent partyand their personal preference of the respective Petitioners as candidatesmost suited to serve their needs on the one hand and, the Leader of theParty on the other.
The long letter dated 25.10.2004 addressed by the Petitioners collectivelyto the Leader, the contents of which have been referred to above clearlystate the concerns of the Petitioners from a perspective of what should bethe policy of the party in relation to the ethnic issue and the serious adverseimpact it has on the Muslims in the North and East. They have expressedserious concern as to the stand taken by the Leader on these issues andindicated that they would support the Government to serve the cause ofthe Muslims and their electorates best. This Court cannot in any waydecide on the correctness of the matters stated by the Petitioners in theirletter. Suffice it to state for the purpose of these applications, that thematters raised by the Petitioners relate to questions of policy to be decidedby the Party in the interests of the Party and its voters. We have to notethat there is no element of personal acrimony disclosed in the letter sentcollectively by the Petitioners to the Leader.
The reply of the Leader dated 05.11.2004, on the other hand, commenceson a note of hostility with the opening paragraph which reads as follows :
“I wish to deny all the assertions, comments and allegations containedin the said letter under reference, since they are false and made with an
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ulterior motive of justifying the political stance taken by you in violation ofthe Constitution of the party….
and ends on an ominous note as follows:
“Finally I would like to remind that the Muslims of the north east will not
pardon you for the treacherous act committed and the Party too will
take appropriate action against you in due course.”
To say the least, the Leader has thrown the principles of natural justiceand fairness to the winds. The hostile comments made well before thecommencement of any disciplinary action by itself establish the allegationsof the Petitioners of mala fides and of bias. To make matters worse, theLeader has precipitously stated that the Party will take action against thePetitioners is due course. Thereby he has assumed the authority to decideon the matter for the entire Party. This is far removed from the democraticprocess, which should characterize the action of a political party and thedegree of fairness, being a sine qua non of any disciplinary action thatmay be validly taken by a political party in respect of any of its members.
In this background the Court has to examine the impugned disciplinaryprocess with a greater degree of caution to ascertain whether the initialstigma of bias and mala fides have been removed in the course of thedisciplinary action allegedly taken.
The letters dated 19.11.2004, being the show cause letters have beensent by the Secretary General of the Party on the basis of the direction ofthe High Command. President’s Counsel for the Petitioners contend thatminutes are kept of meetings of the High Command. They have referred todocuments “C” and “D” being minutes of the High Command meetingsheld on 10.05.2004 and 20.09.2004 produced by the Respondents. Thesedocuments establish that the minutes of previous meetings are read andadopted as-accurate records, on being proposed and seconded to thateffect by the members. The Respondents have failed to produce any of theminutes of any of the meetings of the High Command at which decisionsare said to have been taken with regard to disciplinary action against thePetitioners.
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The two letters dated 1.03.2005 sent by the Secretary General requiringthe Petitioners to attend meetings of the High Command and the Politbureauon successive dates purported to be sent on the basis of a decision of theHigh Command and Politbureau. A question necessarily arises as to whochanged these decisions within three days of the Petitioners pointing outthe anomaly of attending two sets of disciplinary inquiries. We have tomake this observation since the letter requiring the Petitioners to attendthe disciplinary inquiry before the High Command has been sent on 14thMarch in reference to the letter of 11th March sent by the Petitioners.There could possibly have been no meetings held both of the HighCommand and Politbureau within such a short space of time.
The disciplinary inquiry itself is said to have been held at the meeting ofthe High Command at Kings Court of Trans Asia Hotel. Colombo on
commencing at 7.00 p.m. Since the final decision to expelthe Petitioners is said to have been made in this meeting it was essentialfor the Respondents to have produced the minutes of the meeting thatindicate the persons who were present and the manner in which the seriousissues raised by the Petitioners were considered before a final decisionwas made. The minutes would ordinarily have to be confirmed at the nextmeeting of the High Command. The letters of expulsion do not indicate themeetings at which the decisions as to the expulsions were confirmed bythe High Command. These infirmities necessarily lead to the inferencethat the Secretary General has been sending a series of letters at thedictation of another and not on the basis of any decisions of the HighCommand or of the Politbureau, that would ordinarily have been recordedin the form of minutes of such meetings.
In the case of Tilak Karunaratne vs Sirimavo Bandaranaike and others*'1Dheeraratne J., examined the nature of the jurisdiction conferred on thisCourt in terms of provisions of Article 99(13) (a). He has made the followingobservations at page 101-
“The nature of the jurisdiction conferred on the Supreme Court in termsof the proviso to Article 99 (13) (a) is indeed unique in character; it callsfor a determination that expulsion of a Member of Parliament from arecognised political party on whose nomination paper his name appearedat the time of his becoming such Member of Parliament, was valid or•nvalid. Ifthp expulsion is determined to be valid, the seat of the Member
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of Parliament becomes vacant. It is this seriousness of the consequenceof expulsion which has prompted the framers of the Constitution to investthat unique original jurisdiction in the highest court of the island, so that aMember of Parliament may be amply shielded from being expelled fromhis own party unlawfully and/or carpriciousty. It is not disputed that thisCourt’s jurisdiction includes, an investigation into the requisite competenceof the expelling authority, an investigation as to whether the expelling■ authority followed the procedure, if any, which was mandatory in nature;an investigation as to whether there was breach of principles of naturaljustice in the decision making process; and an investigation as to whetherin the event of grounds of expulsion being specified by way of charges ata domestic inquiry the member was expelled on some other grounds whichwere not so specified"….
It is clear from the observation cited above that this Court has to examinethe requisite competence of the expelling authority and the nature of thedecision making process including that of the “domestic inquiry” to besatisfied as to its bona tides and the compliance with the principles ofnatural justice.
The 1 st to 3rd Respondents have failed to produce any evidence as toany of the foregoing matters which the Court has to examine to determinethe validity of the expulsion.
In the case of Gamini Dissanayake Vs M. C. M. Kaleel and others<2)Kulatunga, J. in delivering the majority judgment of this Court observed asfollows:
“The right of a MP to relief under Article 99 (13) (a) is a legal right andforms part of his constitutional rights as a MP. If his complaint is that hehas been expelled from the membership of his party in breach of the rulesof natural justice, he will ordinarily be entitled to relief and this Court maynot determine such expulsion to be valid unless there are overwhelmingreasons warranting such decision. Such decision would be competentonly in the most exceptional circumstances permitted by law and infurtherance of the public good the need for which should be beyond doubt.
As Megarry J said in Fountainevs Chesterton (Supra)"If there is
any doubt, the applicability of the principles of natural justice will be giventhe benefit of that doubt” (cited by Megarry J in John vs Rees) and theexpulsion will be struck down.”
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The observations that the Court may not determine an expulsion to bevalid unless there are overwhelming reasons warranting such decision andthat such a decision will be competent only in the most exceptionalcircumstances and in furtherance of the public good the need for whichshould be beyound doubt have been made considering the seriousrepercussions that follow upon an expulsion of a member. Ordinarily aMember of Parliament would vacate his seat only if his election is declaredvoid or if he becomes subject to any of the disqualifications as are specifiedin the Constitution. Therefore, the expulsion from the party which visits thesame consequence on a member should be made only for cogent reasonsthat warrant such extreme action. The reasons have to transcend personaland parochial considerations and should rest on a broader foundation ofthe public good.
The sequence of events outlined above based entirely on the documentsthat have been produced reveal that prior to disciplinary action beingtaken a serious dispute had arisen between the Petitioners and the Leaderof the Party. As noted, the matters raised by the Petitioners relate toimportant questions of policy to be decided by the Party in the largerinterests of the electorate being the Muslims of the North East. The replyof the Leader as contained in letter dated 05.11.2004 does not state anyfirm position with regard to these questions of policy but descends to apersonal tirade against the Petitioners.
The burden of proof is on the Respondents to satisfy the Court as to thecompetence of the expelling authority, being in this instance the HighCommand of the Party. To get to this point it is the burden of theRespondents to establish that the validly constituted High Commandconvened and took the decision reflected in the several letters written bythe General Secretary. At the least, the Respondents should have producedthe book containing minutes of the meeting of the High Command thatinclude the minutes of the relevant meetings. They have failed to produceeven such prima facie evidence of the meetings. It is also the burden ofthe Respondents to satisfy this Court that the High Command consideredthe evidence and the relevant material in respect of the charges that havebeen made against the Petitioners in the light of the matters urged by thePetitioners (in their reply to the show cause notice) and came to findingsadverse to the Petitioners from the perspective of the overall interests ofthe Party and its electorate. The Respondents have failed to adduce any
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such evidence. Importantly, considering the personal animus displayedby the Leader prior to disciplinary action being taken, the Respondents,should have adduced evidence to establish that the decision making processwas devoid of any taint of bias against the Petitioners. The Respondentshave failed to adduce any such evidence as well. Thus we hold that theRespondents have failed in every respect to satisfy this Court as to thevalidity of the impugned expulsions.
We accordingly declare that the expulsions effected by letters dated
of the three Petitioners are invalid. Accordingly their seats inParliament shall not become vacant pursuant to the purported expulsions.
The applications are allowed with costs payable to the Petitioner by the1 st, 2nd and 3rd Respondents.
In relation to Application No. 4 of 2005, the letter dated 02.05.2005addressed to the Secretary General of Parliament by the United NationalParty stating that the Petitioner in that application has ceased to be amember of the Party from 05.04.2005 has been admittedly sent bn thebasis of the expulsion of the Petitioner from 1 st Respondent Party byletter of 04.04.2005.
Learned President’s Counsel for the United National Party concededthat the Party had no direct interest in this matter and would abide by thedecision of this Court on the basis of the challenge to the impugnedexpulsion as contained in the letter of 04.04.2005.
Accordingly, in Application No. 4 of 2005, we make a further declarationthat the impugned expulsion as contained in letter dated 02.05.2005, tothe Secretary General of by Parliment by the United National Party in alsoinvalid.
SARATHN. SILVA, C.J.
NIHAL JAYASINGHE, J.
N. K. UDALAGAMA, J.
N. E. DISSANAYAKE J.
RAJA FERNANDO, J.
Expulsion determined invalid