004-SLLR-SLLR-2002-V-1-BASHEER-SEGU-DAWOOD-v.-FERIAL-ASHRAFF-AND-OTHERS.pdf
26
Sri Lanka Law Reports
[2002] 1 Sri L.R.
BASHEER SEGU DAWOOD
v.FERIAL ASHRAFF AND OTHERS
SUPREME COURTAMERASINGHE, J.,
WADUGODAPITJYA, J. ANDGUNASEKERA, J.
SC SPECIAL (E) NO. 2/200117, 18 AND 19 SEPTEMBER, 2001
Constitutional Law – Expulsion of a ‘member" of recognized political party whois a Member of Parliament – Articles 99 (13) (a) and 99A of the Constitution- Who may expel the 'member1 where the recognized political party is a politicalalliance – Validity of the expulsion.
The petitioner was, at the material time, a member of the Sri Lanka MuslimCongress (The SLMC) which party together with the Sri Lanka Progressive Frontformed “a new political alliance" called the National Unity Alliance (NUA) by aMemorandum of Understanding (MoU) dated 10th June, 1999. The NUA contestedParliamentary elections in October, 2000.
The petitioner's name appeared on the nomination paper of the NUA at theaforesaid election for the Batticaloa District but he was presumably not eligibleto be declared elected on the basis of preferences received by him at the poll.However, on a request dated 13th October, 2000, made by the 4th respondent(the Secretary-General of the SLMC) made in terms of the MoU between theSLMC and the NUA dated 13th August, 2000, the NUA nominated him as itsNationalist List member under Article 99A of the Constitution and the 9threspondent (the Commissioner of Elections) declared the petitioner as a Memberof Parliament under that Article.
By her letter dated 3rd July, 2001, the 1st respondent (the Leader of the NUA)informed the petitioner that he was expelled from the membership of the NUAwith immediate effect and that as the petitioner represented the NUA in Parliamenthis explusion will be communicated to the 10th respondent (Secretary-Generalof Parliament) and the 9th respondent (the Commissioner of Elections).
Held:
The petitioner, not being a member of the NUA could not be expelled from it.Therefore, the purported expulsion of the petitioner was invalid in terms of Article99 (13) (a) of the Constitution.
sc
Basheer Segu Dawood v. Ferial Ashraff and Others
(Amerasinghe, J.)
27
Per Amerasinghe, J.
. . as far as the petitioner is concerned he was and remains a memberof the political party, namely the SLMC, and that party alone, although hewas a candidate nominated by the NUA for election to Parliament in termsof Article 99A of the Constitution."
APPLICATION in terms of Article 99 (13) (a) of the Constitution challengingexpulsion from the National Unity Alliance.
K. N. Choksy, PC with D. S. Wijesinghe, PC, Ronald Perera, A. M. Faaiz andU. Abdul Najeem for petitioner.
Nihal Jayamanne, PC with Arnold Nanayakkara and Uditha Collure for 1strespondent.
Sanjeewa Jayawardena with Sanjeewa Senasinghe, Mariam Mansoor and ShadiyaZanoon for the 8th respondent.
Romesh de Silva, PC with Harsha Amarasekera for 4th respondent.
Ikram Mohamed, PC with Ian Fernando, Shyama Fernando, ThissathWijegunawardena, M. S. A. Wadood and Lai Munasinghe for 5th and 6threspondents.
Parakrama Karunaratne with Abdul Kalaam for 7th and 11th respondents.
Wijedasa Rajapakse, PC with Nizam Kariappar, and Kuwera de Soyza for 2ndand 8th respondents.
K. Sripavan, Deputy Solicitor-General with Rajiv Gunathilake, State Counsel for9th and 10th respondents.
Cur. adv. vult.
September 28, 2001.
AMERASINGHE, J.
By notification published in Government Gazette No. 1154/7 dated 17th iOctober, 2000, the Commissioner of Elections, acting under Article99 (A) of the Constitution, declared certain persons as 'elected'
28
Sri Lanka Law Reports
[2002] 1 Sri L.R.
Members of Parliament. The petitioner was one of the persons sodeclared ‘elected1 as a Member of Parliament.
By her letter dated the 3rd of July, 2001, (P19) the 1st respondentwrote to the petitioner stating, inter alia, that he had acted in a mannerthat brought disrespect and disrepute to the National Unity Allianceand its Leader. The 1st respondent further stated that "exercising thepowers vested in me as the Leader of the NUA with the objective 10of safeguarding the best interests of the party, I hereby dismiss youfrom the Membership of the National Unity Alliance and expel youfrom the said Party with immediate effect and as such you have ceasedto be a Member of the National Unity Alliance". The 1st respondentconcludes the letter dated the 3rd of July, 2001, with the followingwords: "As you represent the National Unity Alliance in the Parliament,your dismissal from the Membership of the NUA and your expulsionfrom the Party will be communicated to the Secretary-General ofParliament and the Commissioner of Elections."
The petitioner, by his petition dated the 30th of July, 2001, prays 20that this Court, inter alia, (1) declare the purported expulsion of thepetitioner from the National Unity Alliance by P19 to be invalid andof no legal force or effect; and (2) set aside the decision of the 1strespondent contained in P19; and (3) declare that the petitionercontinues to be and remains a Member of Parliament.
The application of the petitioner for the aforementioned reliefs ismade under and in terms of Article 99 (13) (a) states as follows:
"where a Member of Parliament ceases, by resignation, expul-sion or otherwise, to be a member of recognized political partyor independent group on whose nomination paper (hereinafter 30referred to as the "relevant nomination paper") his name appearedat the time of his becoming such Member of Parliament, his seatshall become vacant upon the expiration of a period of one monthfrom the date of his ceasing to be such member:
sc
Basheer Segu Dawood v. Ferial Ashraff and Others
(Amerasinghe, J.)
29
Provided that, in the case of the expulsion of a Member ofParliament his seat shall not become vacant if prior to the expirationof the said period of one month he applies to the Supreme Courtby petition in writing, and the Supreme Court upon such applicationdetermines that such expulsion was invalid. Such petition shall beinquired into by three Judges of the Supreme Court who shall make 40their determination within two months of the filing of such petition.Where the Supreme Court determines that the expulsion was vaildthe vacancy shall occur from the date of such determination".
The petitioner came to be a Member of Parliament in the followingway:
The Secretary-General of the Sri Lanka Muslim Congress (SLMC),on the 13th of October, 2000, wrote to the Secretary-General ofNational Unity Alliance (NUA) stating as follows: (P25B).
"This is further to our discussion on the need to recommenda name to the Commissioner of Elections for the National List of sothe National Unity Alliance.
Please take action to recommend the name of Mr. Basheer SeguDawood, the National Propaganda Secretary of the Party to theCommissioner of Elections to be appointed as a MP on the NationalList of the NUA.
This communication is sent to you in terms of the Memorandumof Understanding signed between the SLMC and the NUA dated31. 08. 2000."
The Secretary-General of the NUA on the 13th of October, 2000,accordingly wrote to the Commissioner of Elections (P25C).60
q»0j§£D® ©zs6ej&8 99q> Sea 023©rid)© oOgqJ go osi@C50 0® S qjS ©sS qraeacKiC3QB0 2000. I0. I0 ©ea gea o©d©ea ®s» ©tSSOstJocSg go oeteo 0SeS ®§to©gs
30
Sri Lanka Law Reports
[2002] 1 Sri L.R.
©8S0O0D QSOStflXSQ G3£S» g@0Otf> 55X3® ©£ S5»® QGbtiW O@0C3®66'jEp,
{ptt S 0X3 go65) 164 8 Ogo0 ©813 OCX? £)§£ @©850 00)85X33) e@s g<3@> SS®.
The National Unity Alliance was, in the words of the Memorandumof Understanding dated the 10th of June, 1999 (P4), "a new politicalalliance", that brought together two recognized political parties for thepurposes of elections, namely, the Sri Lanka Muslim Congress andthe Sri Lanka Progressive Front. The National Unity Alliance itselfbecame a recognized political party for the purposes of elections within 70the meaning of section 7 of the Parliamentary Elections Act, No. 1of 1981.
The Constitution of the National Unity Alliance states (P5a) thatthe members of the National Unity Alliance are –
The Sri Lanka Muslim Congress, and
The Sri Lanka Progressive Front.
However, the Constitution of the NUA provides that the politburoof the NUA "by a unanimous decision may decide to admit any otherpolitical party into the alliance".
The structure known as the NUA had constituent parts consisting soof political parties, but it did not accommodate individuals as members.
The petitioner contends that neither he, nor for that matter anyother individual, was a member of the NUA, for the NUA Constitutiondid not provide for any members other than political parties. Individualscould not become members of the NUA. The petitioner contends thatinasmuch as he was not a member of the NUA, the 1st respondent'spurported expulsion of the petitioner from the NUA was a nullity. Thepetitioner further contends that in any event the purported expulsionwas invalid in terms of the Constitution of the National Unity Alliance(P5a).90
sc
Basheer Segu Dawood v. Ferial Ashraff and Others
(Amerasinghe, J.)
31
Mr. Jayamanne, PC and Mr. Rajapakse, PC contended that, if asthe petitioner maintains, he was not a member of the NUA, then heis precluded from invoking the jurisdiction of this Court under and interms of Article 99 (13) (a) of the Constitution, for a person invokingthe jurisdiction of this Court under that Article should have ceasedby resignation, expulsion or otherwise to be a member of a recognizedpolitical party … on whose nomination paper… his name appearedat the time of his becoming such Member of Parliament . . ." Thesubmission of learned counsel, attractive though it appears at firstsight, is in my view flawed, for it rests on the erroneous assumption toothat a Member of Parliament must be a member of a recognizedpolitical party.
Where there is a purported expulsion of a Member of Parliamentsuch Member is entitled, under Article 99 (13) (a) of the Constitution,to invoke the jurisdiction of this Court to determine whether suchexpulsion was valid. In order to invoke the jurisdiction of this Court,a petitioner is not required to establish that he was a member of arecognized political party on whose nomination paper his name appearedat the time of becoming such Member of Parliament. Members ofParliament who are 'elected' are candidates whose names appear on 110the nomination papers of recognized political parties. There is norequirement that such candidates shall also be members of suchparties. The petitioner, as we have seen was declared 'elected' underand in terms of Article 99A of the Constitution. There is no requirementin that Article for a nominee of a recognized political party, to fill aseat due to such political party under an apportionment, to be amember of that political party. Neither the provisions of the Constitutionnor the provisions of the Parliamentary Elections Act require a personto be a member of a political party to be eligible to be nominatedas a candidate for election to Parliament. Of course, political parties 120and alliances of political parties may have members who can beexpelled. In fact, the new Constitution of the NUA does provide for"Founder Members", namely, the SLMC and the SLPF and individuals.
But, as far as the petitioner is concerned he was and remains amember of one political party, namely, the SLMC, and that party alonealthough he was a candidate nominated by the NUA for election toParliament in terms of Article 99A of the Constitution.
32
Sri Lanka Law Reports
[2002] 1 Sri L.R.
As we have seen, the first respondent in her letter (P19) has statedthat as the petitioner represents the NUA in Parliament his “dismissalfrom membership of the NUA" (sic) and his "expulsion from the Party" i»>will be communicated to the Secretary-General of Parliament and theCommissioner of Elections.
Whatever the petitioner or anyone else may have thought aboutthe matter, the petitioner's seat in Parliament would have automaticallyfallen vacant upon expiration of one month from the purportedexpulsion from the party and the Secretary-General of Parliamentwould have informed the Commissioner of Elections who would thenhave taken steps to fill the vacancy. (See Article 99 (13) (a)of the Constitution and section 64 (1) of the Parliamentary ElectionsAct, No. 1 of 1981). However, the Constitution states that in the case 140of expulsion of a Member of Parliament his seat would not becomevacant if prior to the expiration of one month from the expulsion heapplies to the Supreme Court and the Court upon such applicationdetermines that such expulsion was invalid.
The petitioner, not being a member of the NUA could not beexpelled from it. I, therefore, hold that the purported expulsion of thepetitioner, Mr. Basheer Segu Dawood, was invalid since it was nulland void and of no force or avail in law; the purported expulsion bythe first respondent is of no value or importance: It amounts tonothing and shall be treated as non-existent for the purposes of 150Article 99 (13) (a) of the Constitution.
The 1st respondent shall pay the petitioner a sum of Rs. 25,000as costs.
WADUGODAPITIYA, J. – I agree.
GUNASEKERA, J. – I agree.
Expulsion of the petitioner from the party determined invalid.