JAYATILLAKE AND ANOTHER v. KALEEL AND OTHERS

011-SLLR-SLLR-1994-V1-JAYATILLAKE-AND-ANOTHER-v.-KALEEL-AND-OTHERS.pdf


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JAYATILLAKE AND ANOTHER
v.KALEEL AND OTHERS
SUPREME COURT.
FERNANDO, J„ KULATUNGA, J. ANDWADUGODAPITIYA, J.
SC APPLICATIONS 1 & 2/92
FEBRUARY 3RD, 5TH, 6TH, 7TH AND 11TH, 1992.
Expulsion from membership of political party ~ Conduct violative of the provisionsof the party Constitution – Signing of impeachment motion against the Presidentand revoking the signatures – Recommendation of Disciplinary Committee ofParty's Working Committee – Constitution, Articles 10, Ufa), 38(2)(a) and 99(I3)(a) – Constitutional right to sign Notice of resolution of impeachment -Signing the Notice without knowing contents – Understanding that no disciplinaryaction would be taken against those who retract – Right to lead oral evidence -Affidavit sworn before deponents own Proctor – Delegation of powers – Naturaljustice – Audi alteram partem rule – Oral hearing – Fair hearing – “Observances'and “Explanations" – Internal discussion – Deceitful conduct – Misconduct -Rules 3(d), 17(2) of the Party Constitution – Promissory estoppel – Futuremisconduct – Bias.
Two members ol Parliament, Ariyaratne Jayatilleke and S. A. Muthu Banda thepetitioners in applications No. 1 and 2/92 respectively challenged their expulsionfrom the United National Party a recognised political party hereafter referred to asthe "party” in their respective applications made in terms of Article 99(13)(a) ofthe Constitution. In late August 1991 a sudden crisis occurred in the party inconsequence of a notice of resolution (hereafter referred to as “the notice") for theremoval of the President in terms of Article 38{2)(a) of the Constitution, beinggiven to the Speaker. Eight members of Parliament were expelled from the Partyby a resolution of the Working Committee passed on 06.09.91. Petitions filed bythem were dismissed in Dissanayake v. Kaleel SC (Special) Nos. 4 to 11/91 –
S.C. Minutes of 03.12.91.
The petitioner in SC 1/91 (hereafter referred to as 1st petitioner) is an Attorney-at-Law and he was the Project Minister for Minerals and Mineral-based Industries.He admittedly signed the Notice and claims he did so in pursuance of aConstitutional right, power or authority. On 18.09.91 he resigned from hisMinisterial post. On 19.09.91 he wrote to the Minister of Industries that he signedthe notice on a bona fide basis without reading it and without understanding whatit was all about. Earlier by letter dated 30,08.91 (R1) the two petitioners and 114other members ol the (UNP) Group informed the Speaker that they do not supportthe said Resolution and those of them who had signed it were withdrawing andrevoking their signatures and consent to it and as thus the Resolution did not
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have the requisite number of signatories under Article 38(2)(b). it should not beplaced on the Order paper or Order Book of Parliament. On 02.09.91 the grouppassed a resolution (R2) emphatically declaring and confirming its confidence inthe President and stating that the signatures of the Group and some memb#s ofthe opposition had been obtained through misrepresentation and deceit andcalled upon the Speaker to reject the illegal, unconstitutional and malicious moveto remove the President. This resolution was signed also by the two petitionersand the 114 others. R1 and R2 were handed over to the Speaker on 03.09.91. Inthe letter to the Speaker or in the Resolution of the Group, the 1st petitioner doesnot claim that he signed the two documents without reading them, or throughmistake, misrepresentation or compulsion.
The petitioner in S.C. 2/92 (2nd petitioner) also signed the Notice in purportedpursuance of a Constitutional right. Although in Court he admitted signing R1and R2, in an interview to the Divaina (of 13.09.91) and at a Press Conference atMr. Athulathmudali's residence (Lankadipa of 23.09.91) he denied signing R2 andrequested an inquiry by the Examiner of Questioned Documents. There was thusnot even a suggestion that R1 and R2 were signed through mistake,misrepresentation or compulsion or that he did not intend to withdraw and revokehis signature on the Notice.
There was an understanding that no disciplinary action would be taken againstthose who retracted their signatures. The Speaker on 08.10.91 announced thatthe Notice did not have the required number of valid signatures and could not beproceeded with. A no-confidence motion was moved against the Speaker.
By letter dated 09.10.91 to the Chief Government Whip (the Whip) both petitionersrequested a free vote on the 'No-confidence' motion in the exercise of theirConstitutional Right and said they intended to vote for the motion as the Speakerhad violated their privileges as Government Members of Parliament by making awrong statement as to the validity of the Resolution.' The Group met on 09.10.91.The two petitioners were absent without excuse or reason. It was unanimouslydecided to vote against the 'No-confidence' motion. This decision wasconveyed about 10.00 a.m. on 10.10.91 in Parliament to the 2nd petitioner byletter dated 09.10.91 directing him to be present and to vote against the No-confidence' motion. The decision however could not be conveyed to the 1stpetitioner as he could not be contacted and as he was not present in Parliamenton 10.10.91. The 1st petitioner did not attempt to ascertain what decision hadbeen reached on his request in his letter of 09.10.91 for a free vote. On 10.10.91both petitioners were absent at voting time and did not vote against the motion.The question of disciplinary action against the petitioners and two others wasconsidered by the Working Committee on 04.11.91. While it was decided not totake action against the two others (although one had not voted against themotion) as both had given a written undertaking not to work against the Partypolicies, in regard to the two petitioners it was decided to await the judgment in
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the cases tiled by eight other expelled members. The judgment was delivered on
affirming the expulsion. The Disciplinary Committee of the Party'sWorking Committee met at 7.00 p.m. on the same day and having considered theRlport of the Disciplinary Committee decided that the General Secretary (2ndrespondent) should write to the two petitioners to be present at a meeting of theWorking Committee to be held on 06.12.91 at 8.00 p.m. for the purposes ofdiscussing their conduct as Members of the Party as appeared from their lettersof 09.10.91. No particulars were given. Letters dated 03.12.91 were sent by theSecretary to the petitioners but the petitioners did not receive them on or before06.12.91. The Working Committee met on 06.12.91 and resolved to expel thepetitioners from the Party with immediate effect. By letter dated 09.12.91 theSecretary informed the petitioners of their expulsion setting out six reasons. On
before receiving the letter ol expulsion the 1st petitioner wrote to theSecretary (2nd respondent) explaining that he was absent as the letter of
was received after 06.12.91. On 12.12.91 the 2nd petitioner wrote insimilar terms protesting that the steps taken against him were illegal. Neitherpetitioner requested another opportunity of appearing before the WorkingCommittee. The Divaina of 10.12.91 reported the 1st petitioner as saying inter aliathat he and the 2nd petitioner would join the Democratic United National Front(DUNF) and address the public at rallies of the Lalith-Gamini Group. Thepetitioner did not deny or explain this newspaper report.
In the letter of expulsion the petitioners were informed that if they so desire theycould forward their written “observations* stating their position before 27.12.91.The petitioner replied on 26.12.91 answering the allegations. The WorkingCommittee met on 30.12.91 and after considering the replies of the petitionersdecided not to alter or reconsider the decisions reached on 06.12.91. This wascommunicated to the petitioners on the same day. On 03.01.92 the two petitionswere filed. An application was made to lead oral evidence on behalf of thepetitioners.
The essence of the allegations against the Petitioners was:
(a) Signing the Notice of resolution without prior internal discussion within
the Party;
Continuing to support that Notice despite revocation and retraction oftheir signatures, without prior internal discussion;
Deceitful conduct towards the Party in regard to such revocation andretraction, as evidenced by their subsequent conduct (namely, theircontinued support of the Notice and their letter of 09.10.91;
Absence from Parliament on 10.10.91 and failure to vote with the Group,and failure to tender any reason or excuse up to 06.12.91 and;
Associating with the 8 expelled members in a public campaign againstthe Party and leadership, and the Executive Presidential System, withoutprior internal discussion.
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Held:
It is the substance of the charges and not the form that is important.
The application to lead oral evidence was seen to be an attempt to ciflethe defects in the affidavits and not to enable the Court to determinewhich of the two conflicting versions was more probable and credible,and therefore disallowed.
An affidavit sworn before the deponent’s own Proctor ought not to bereceived in evidence. Vet here the affidavits were not rejected becauseCounsel for the respondents did not object to their reception.
The Working Committee had delegated disciplinary powers to deal withthe petitioners.
5(a). The audi alteram partem rule applies and the proceedings of the WorkingCommittee considered independently of subsequent letters and events,were in breach of that rule because –
the notice given was inadequate,
the notices did not specify the allegation against the petitioners andwere no more than an invitation for a decision.
the Working Committee had several documents relevant to thePetitioners’ conduct but did not disclose these to the Petitioners andinvite their observations.
Yet to judge compliance by reference to the use of a specific form orformula, or the observance of a particular procedure or process, wouldinevitably confine and constrict a dynamic and expanding principle ofsubstantial fairness within the stifling and static technicalities of form andprocedure. Thus the question whether the Petitioners have been denied afair hearing, or a fair opportunity to state their case, can never be made todepend on whether they were asked merely for 'observations" and not for‘explanations'.
(b) In the context of all that happened in December 1991 the four daysallowed to the petitioners (of which they needed only three) weresufficient to state their case and the manner in which they did so, had adirect bearing on the further question whether natural justice required anoral hearing and additional evidence.
A Member of Parliament has a constitutional right to sign a notice ofimpeachment in the exercise of an independent discretion and this doesnot extend to the signing of a document, contents unseen. The questionis not 1st petitioner's responsibility or accountability after signing; butrather whether he exercised his discretion before affixing his signature.Had the document related only to 1st petitioner's personal affairs it mighthave been a mere question of responsibility or accountability; but this wasa public matter relating to Constitutional powers and duties and it was agrave misuse of a Constitutional right to have signed, without knowledgeof its contents, an indictment of the most serious kind known to our law.
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The petitioners did not deny that there was no prior internal discussion,but claimed only that this question did not arise because the Notice wassigned in the exercise of a Constitutional right.
Once the petitioners represented to the Speaker and to the Group thatthey retracted their signatures, alleging misrepresentation, deceit andmalice, they could no longer be heard to say that the notice was valid, orthat they signed it in the exercise of a Constitutional right (for they did notclaim that the retraction was void). Here too they did not deny theabsence of prior internal discussion before continuing to support thenotice.
The petitioners were charged with deceitful conduct. Their subsequentconduct and their letters of 09.10.91 reasonably give rise to the inferencethat their retractions were not genuine. Their subsequent conduct andletters of 09.10.91 establish deceitful action towards the Party and theGroup.
The petitioners admitted their absence from Parliament at voting time on
and merely denied that this constituted a breach of Partydiscipline. The issue was that the Petitioners were asked to state theirposition and they did so. But they failed to state factual matters peculiarlywithin their knowledge.
In respect of the first three allegations the primary facts were not inquestion. Whether those facts established deceitful conduct was a matterof inference. Whether they established misconduct warranting expulsionwas a matter of law. That misconduct would have brought the Party intodisrepute (Rule 3(d) of the Party Constitution), was contrary to thedirective of the Group (Rule 17(2), and was generally in violation offundamental obligations of loyalty and honesty owed to the Party and tofellow members.
In the context of the petitioners’ course of conduct there is no denial ofthe fourth allegation. Assuming in favour of the petitioners that suchcriticisms were, or might have been, within the scope of their fundamentalright to freedom of speech, yet the gravamen of the charge is theundoubted lack of prior internal discussion.
This is not a case where the petitioners had asserted that the expulsiondecision of 06.12.91 was void and refused to participate in thesubsequent proceedings; or participated without prejudice to thatposition. Here the Petitioners chose to participate in the subsequentproceedings, they were afforded an opportunity to state their case, anddid so; the factors and circumstances were not at all complex, and they
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could without any difficulty have stated their case in three or four days;and when they did so, the facts ceased to be in dispute except in regardto the fourth allegation; thereupon an oral hearing became unnecessaryin regard to the first three allegations. They were, however, entitle* toparticulars and an oral hearing in regard to the fourth allegation but theirpleading in Court indicated that on the fourth allegation too the facts werenot realty in dispute. In any event, the other three allegations weresufficiently grave to render expulsion a proper and appropriate penalty,and the defect in regard to the fourth was not fatal.
While natural justice entitles a person to a fair and accurate statement ofthe allegations against him, the mere fact that he had not been givenformal notice of all the matters in which his conduct was to be called inquestion, did not necessarily entitle him to contend that the inquiry was inbreach of the audi alteram partem rule.
In view of the fact that –
the initial breach of natural justice was not deliberate,
action was not taken to enforce, or to make legal consequences flowfrom the order of expulsion, and the fact that the Petitioner'sparticipation in the subsequent proceedings gave the Committee alocus paenitentiae.
the allegations were fairly and adequately, though not fully andprecisely communicated, and
a fair opportunity was given to the petitioners to state their case, andan oral hearing became unnecessary as the facts were undisputedin consequence of their replies,
the Petitioners’ case had received – overall – full and fair consideration,and a fair result had been reached by fair methods. This is despite thefact that (a) the elaborate ‘Guidelines for Disciplinary Inquiries’ adoptedby the Working Committee had not been followed and (b) the Petitionershad no opportunity of being heard in mitigation. The guidelines providean exemplary procedure but they were not binding on the WorkingCommittee.
Overall there had been a fair hearing and as for mitigation, themisconduct was so serious as to make mitigation impossible. In any eventon 09.12.91 the Petitioners had virtually repudiated the Party and casttheir lot with the DUNF.
The freedom of speech in public which an MP is entitled to is constrainedby the requirements of Party discipline. Criticism or even condemnation ofpolicies or ideas within a Party are legitimate even if it were to weaken the
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Party's position in the country for the time being. In appropriatecircumstances, even public criticism of Party Policies or personalities maybecome reasonable. However it is not permissible for a group ofdissidents who seek to secure effective control of the Party on account ofirreconcilable differences with the Party Leadership to conduct acampaign calculated to destroy the Party and yet retain their status asMPs belonging to such Party in Parliament. Our Constitution does notpermit a Party within a Party. An MP who uses his right to freedom ofspeech to create a crisis situation violates his Party obligations andforfeits the protection of Article 14(a) of the Constitution. Such conductcannot be described as an exercise of the right of freedom of thought andconscience guaranteed by Article 10 of the Constitution. Disciplinaryproceedings can then validly be taken.
Although the petitioners were signatories to R1 and R2 and the Party hadpublicly declared that no disciplinary action would be taken against suchsignatories, there was no promissory estoppel created. There is anadmission in R2 that the impeachment motion was malicious. Bydisowning the Notice the petitioners made amends for their misconductand thereby acknowledged their commitment to the Party. By such actthey obtained exemption from being dealt with for violating the PartyConstitution by reason of their misconduct in signing the motion withoutfirst raising the issues with the Party. There was no promise by the Party torefrain from taking disciplinary action against them for future misconduct.They dishonoured their undertaking in R2 and showed beyond doubt thatthey had resumed their misconduct. Here there was no promise affectinglegal relations between the parties. The party did not contract with thepetitioners to confer on them the privilege of persisting with theirmisconduct without sanction.
A reasonable inference is that even at the time of signing R1 and R2, thePetitioners were loyal to the dissidents and signed these documents as acolourable device to avoid disciplinary action which might have led to theloss of their Party Membership and their status as MPs.
The rights of the petitioners to Party Membership are contractual. At thetime of their expulsion, they had repudiated the UNP and were de factomembers of the DUNF; and their expulsion constituted nothing more thanthe severance of the formal link between them and the Party. The decisionto expel the petitioners is not vitiated by bias.
Cases referred to:
Dissanayake v. Kaleel SC (Special) Nos. 4 to 11/91 – SC Minutes of 03.12.91.
Pakir Mohideen v. Mohamadu Cassim [1900] 4 NLR 299.
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Cadar Saibu V. Sayadu Beebi [1900] 4 NLR 130.
Ridge v. Baldwin [1964] AC 40, 132.
Stevenson v. United Road Transport Union [1976] 3 All ER 29,41.
Labouchere v. WharncliffeltfUQ] 13 Ch. D 346, 351.
Davis v. Carew-Pole [1956] 1 WLR 833.
Russell v. Duke of Norfolk [1949] 1 All Er 109.
Posluns v. Toronto Stock Exchange [1968] 67 DLR (2d) 165.
De Verteuil v. Knaggs [1918] AC 557; 118 LT 758.
Pillai v. Singapore City Council [1968] 1 WLR 1278. 1286.
Stringer v. Ministry of Housing [1971 ] 1 All ER 65, 75.
Calvin v. Carr [1979] 2 All ER 440, 448, 449, 452.
Joseph Perera v. Attorney-General SC Applications No. 107 – 109/96 – SCMinutes of 25.05.87.
Dissanayake v. Sri Jayewardenapura University [1986] 2 Sri. LR 264.
Austin v. Keefe 1971 US 402, 415, 419.
John v. Rees [1969] 2 WLR 1294, 1332 (citing unreported case of Fountainev. Chesterton).
Fisher v. Keane [1878] XI Ch. D. 353. 360.
R v. Immigrational Tribunal exp. Mehmet [1977] 1 WLR 795.
Sloan v. General Medical Council [1970] 2 All ER 686.
Board of Mining Examination v. Ramjee AIR 1977 SC 965.
APPLICATION under and in terms of Article 99(13) (a) of the Constitutionchallenging expulsion from recognised Political Party.
L W. Athulathmudali PC with R. C. Gooneratne, Dr. Ranjit Fernando. MahendraAmerasekera, Dhamsiri Fonseka. T. M. S. Nanayakkara. S. J. Liyanage. NigelHatch, Nalin Dissanayake, Miss Ranjini Morawaka, Miss Hyacinth Fernando andM. B. Handukumbura for petitioners.
K, N. Choksy with S.C. Crosette-Tambiah, Daya Pelpola, S. J. Mohideen, L. W.Jayawickrema, A. L. B. Brito-Mutunayagam, Ronald Perera and LakshmanRanasinghe for 1st to 4th respondents.
No appearance for 5th respondent.
Cur adv vult.
February 28th, 1992.
FERNANDO, J.
Two Members of Parliament applied to this Court, by petitions interms of Article 99(13) (a) of the Constitution, challenging theirexpulsion from the United National Party (“the Party"), a recognised
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political party. The questions of fact and law involved are almostidentical, and both petitions were heard and determined together.
HE FACTSIn late August 1991 a sudden crisis occurred in the Party, inconsequence of a notice of resolution (“the Notice") for the removal ofthe President, in terms of Article 38(2) (a) of the Constitution, beinggiven to the Speaker. Eight Members of Parliament were expelledfrom the Party by a resolution of the Working Committee passed on
Petitions filed by them were dismissed by this CourtDissanayake v. Kaleel™
The Petitioner in S.C. 1/92 (the “1st Petitioner”) is an Attorney-at-Law, who was Project Minister for Minerals and Mineral-basedIndustries; he admittedly signed the Notice, and claims that he did soin pursuance of a Constitutional right, power or authority; three weekslater, by letter dated 18.9.91, he tendered his resignation from hisMinisterial post; in a personal letter dated 19.9.91 (P4) to the Minister.of Industries he explained the matters which led him to resign. In thatletter he said:
“Coming to [the] immediate issue, I was never a member of thegroup that started the present movement. When the petition wasbrought to me, l signed it on a bona fide basis, even withoutseeing it. In Parliament, we have put our signatures to manyother such documents. At the group meeting held immediatelyafter this so-called plot, I and many others were non-plussedand remained silent spectators like some characters in a novel,unable to find a path to tread."
(Throughout this judgment I have added emphasis to key phraseswhich Counsel have subjected to scrutiny in their submissions.) It isclear that he had signed that Notice without reading it, and withoutunderstanding what it was all about, for he added:
"But as time passed and the facts, accusations and counter-accusations started flashing either way I began to understandwhat this was all about … the issue of certain allegationsagainst… the President."
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The “group meeting” referred to was a meeting of the GovernmentParliamentary Group (‘the Group”) held on 2.9.91. By letter dated30.8.91 (R1) the two Petitioners and 114 other Members of the Grqypinformed the Speaker that:
"We write to hereby inform you that we do not support the saidResolution.
Those of us who have placed our signatures thereto do herebywithdraw and revoke our signatures and consent thereto.
In the circumstances, the Resolution does not have the requisitenumber of signatories under Article 38(2) (b) entitling yourself toplace the same on the Order Paper or Order Book ofParliament.
The Resolution should therefore not be placed on the OrderBook or Paper. Doing so will be contrary to the expressprovisions of the Constitution referred to above.”
On 2.9.91, the Group passed a resolution (R2) which emphaticallydeclared and confirmed its confidence in the President and thepolicies of the Government; vouched that the President had upheldthe Constitution, and had never violated the Constitution, committedan unlawful act, or abused power; rejected the “clandestine move" toremove the President; and condemned those who had “obtained thesignatures of certain Government and Opposition Members ofParliament through misrepresentation and deceit”. The Groupexpressed dismay that the Speaker had entertained the Notice “withmuch haste and without verification", and called upon the Speaker to“reject the illegal, unconstitutional and malicious move to remove thePresident". This resolution was signed by the Petitioners and 114other Members. R1 and R2 were handed to the Speaker in person bythe signatories including the Petitioners, on 3.9.91. It was clear fromP4 that the Notice was at least briefly discussed at the Groupmeeting. Although the 1st Petitioner states that there was only ageneral statement by the President denying the allegations made, hedoes not claim that he signed those two documents without readingthem, or through mistake, misrepresentation or compulsion.
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The Petitioner in S.C. 2/92 (the "2nd Petitioner") also signed theNotice in purported pursuance of a Constitutional right. In his petitionto jhis Court he specifically admitted signing the letter of 30.8.91 andthe resolution of 2.9.91. However, in an interview to the “Divaina*(R15C of 23.9.91) and at a Press Conference at Mr. Athulathmudali'sresidence (R15D, "Lankadipa" of 23.9.91) the 2nd Petitioneremphatically denied signing the resolution (pleading support for thePresident), addressed to the Speaker; he requested an inquiry by theExaminer of Questioned Documents to determine who had forged hissignature. When those two documents were produced by the 2ndRespondent, as R1 and R2, the 2nd Petitioner filed a counter-affidavitcontaining an unqualified admission of those documents. There isthus not even a suggestion in this Court that R1 and R2 were signedthrough mistake, misrepresentation or compulsion; or that he did notintend to withdraw and revoke his signature on the Notice. Thenewspaper reports were not denied or explained contemporaneously,or even in the pleadings or submissions in this Court. I am thereforecompelled to conclude that the 2nd Petitioner falsely denied signingthe resolution R2.
Although Mr. Athulathmudali, P.C., submitted to us that thePetitioners had signed R1 and R2 in the interests of Groupcohesiveness, that was not an explanation set out in their letters oraffidavits and therefore cannot be accepted. Having signed theNotice, by later signing R2 they were representing to the Speakerand their co-signatories that their signatures on the Notice had beenobtained through misrepresentation and deceit; and this is confirmedby their condemnation of the “malicious move to remove thePresident".„Had they revoked their signatures as having been affixedby mistake, or misunderstanding, or some other reason, it wasincumbent on them to have stated this in R2, or at least in theirpleadings in these proceedings. Since the 1st Petitioner had signedwithout seeing the petition, and “began to understand what this wasall about” only on 2.9.91, it is almost an irresistible conclusion that hissignature had been obtained through misrepresentation, if not deceit,
In a speech to the Parliamentary Group on 18.9,91, the Presidentstated that no disciplinary action would be taken against anyMembers who said that they had signed the Notice and later
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retracted their signatures; he also said that a resolution to this effectwould be adopted by the Working Committee. There is no evidencethat such a resolution was passed, but the minutes of the Work jpgCommittee meeting of 6.12.91 refer to the “understanding" that nodisciplinary action will be taken against such members.
On 8.10.91 the Speaker announced in Parliament that havinginquired into the matter he was of the view that the Notice did nothave the required number of valid signatures, and accordingly couldnot be proceeded with; this was the very decision which the Grouphad sought by R2. Notice was immediately given of a “No-confidence" motion against the Speaker. By letters dated 9.10.91 tothe Chief Government Whip (“the Whip") both Petitioners requested afree vote on that motion, stating:
“In the exercise of my rights as a Member of Parliament underArticle 38(2) of the Constitution, I signed the Impeachmentresolution and delivered it to the Speaker.
By making a wrong statement as to the validity of thatResolution which had been signed and given by me, theSpeaker had violated my privileges as a Government Memberof Parliament. For that reason I intend to vote in favour of theNo-confidence motion against him."
The Group met on 9.10.91; the two Petitioners were absent withoutany excuse or reason; it was unanimously decided to vote against the“No-confidence" motion, and to reject the Petitioners’ request for afree vote. This decision was conveyed to the 2nd Petitioner by letterdated 9.10.91 (handed to him in Parliament at about 10.00 a.m. on10.10.91) directing him to be present and to vote against the “No-confidence" motion. That decision, however, could not be conveyedto the 1st Petitioner, as he was not available at his Colombo andDivulapitiya residences where the Secretary to the Whipendeavoured to telephone him on the night of 9.10.91, and as he wasnot present in Parliament on 10.10.91. The 1st Petitioner did notattempt to ascertain what decision had been reached on his requestfor a free vote. On 10.10.91 both Petitioners were absent at votingtime and hence did not vote against that motion, which was defeated.
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At the Group meeting on 9.10.91 a direction had been given that twoother Members – Dr. P. M. B. Cyril and Mr. R. Samaraweera – be alsoinjprmed to vote against the No-confidence motion. Dr. Cyril hadjoined the eight expelled Members in their campaign, but votedagainst the motion and gave a written undertaking not to support orparticipate in criticism of the Party or its activities. Mr. Samaraweeradid not vote against the motion, but later wrote to the 2ndRespondent stating that he had not participated, and would notparticipate, in any activity contrary to the Party policies. The questionof disciplinary action against all four Members was considered by theWorking Committee on 4.11.91. It was decided, in view of the letterssent by Dr. Cyril and Mr. Samaraweera, not to take disciplinary actionagainst them; and to await the judgment of this Court in the casestiled by the expelled eight Members; that was delivered on 3.12.91.
The Disciplinary Committee of the Party’s Working Committee metand submitted a report on 3.12.91; they recommended thatdisciplinary action be taken against the Petitioners, on account ofseveral matters (the same matters which were later set out in theletter of expulsion (P1) dated 9.12.91). The Working Committee metat 7.00 p.m. on the same day and. having considered the Report ofthe Disciplinary Committee and the letters dated 9.10.91 written bythe Petitioners, decided that “the General Secretary should write tothese two members, requesting them to be present at a meeting ofthe Working Committee to be held on 6.12.91 at 8.00 p.m. for thepurpose of discussing their conduct as members of the Party"; noparticulars were given.
Letters dated 3.12.91 were sent by the 2nd Respondent (theGeneral Secretary) by express post (certificates of posting havebeen produced) the same night to both Petitioners; to both Colomboaddresses as well as their constituency addresses. The Petitionersstate that the letters to their Colombo addresses never reached them;and that the letters to their constituency addresses were received on
It is unnecessary for us to decide whether and when thoseletters were received, because the parties have agreed, for thepurpose of determining these proceedings only, that these letters hadnot been received on or before 6.12.91. By those letters, eachPetitioner was informed only that the Working Committee had
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considered his letter dated 9.10.91, and requested him to be presentat a meeting fixed for 6.12.91 at 8.00 p.m. "for the purpose ofdiscussing and considering your conduct as a member of the Pqjtyas appears from your letter” dated 9.10.91, and that if he did not
attend, the Working Committee would proceed to consider the matterin his absence. No reference was made to the other matters set out inthe report of the Disciplinary Committee.
On 6.12.91 the Working Committee duly met; assuming that thePetitioners had received notice, and noting that they had not sent anycommunication regarding their absence, the Committee proceededto discuss their conduct. Several documents were tabled: the reportof the Disciplinary Committee, letters dated 30.8.91 (R1), 19.9.91(P4), and 9.10.91, the resolution dated 2.9.91 (R2), and "newspaperreports [unspecified] of public meetings held by the former expelledeight members at which [the Petitioners] were present". Six membersof the Committee spoke; some referred to factual matters (e.g. thatthe 2nd petitioner had denied his signature to R1 and R2; that thedecision to refuse a free vote had been conveyed to the 2ndPetitioner, but not to the first), and others expressed opinions (e.g.that the Petitioners' conduct was deceitful). The committee thenresolved to expel them from the Party, with immediate effect, for thefollowing reasons:
‘1. That they were, on their own admissions, signatories to theNotice of Resolution under Article 38(2) of the Constitution toimpeach H.E. the President, the Leader of the Party.Notwithstanding that they were signatories to the letter dated30th August, 1991, addressed to the Speaker by Members ofthe Government Parliamentary Group and also to theResolution of the Government Parliamentary Group of 2ndSeptember, 1991, they have persisted in maintaining theirsupport of the said Notice of Resolution.
2. Their conduct in continuing to support the said Notice of
Resolution subsequent to their signing the aforesaid letterdated 30th August, 1991, and the said Resolution of 2ndSeptember, 1991, and their letters dated 9th October, 1991,written to the Chief Government Whip, establish deceitful
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action on their part towards the Party and the GovernmentParliamentary Group.
That whilst being members of the Party they have associatedthemselves with the public campaign carried on by the 8former members of the Party who were expejled from the Partyon 6th September, 1991, at which the Party policies andLeadership and more particularly the Executive Presidentialsystem have been criticized.
That their aforesaid acts set-out at (1) and (3) above werecommitted without prior consultation with or discussion withinthe Party Organisation.
That despite their requests for a free vote on the Motion of No-confidence against the Speaker being refused by theGovernment Parliamentary Group, they were not present inParliament on 10th October, 1991, to vote with the Governmentbenches against the Motion, and have up to date nottendered any reason or excuse for such breach.
They have by their aforesaid acts violated Section 3(a), (b),
; Section 9(d), (e), (f), (g); and Section 17(1), (2), (3), (6) ofthe Party Constitution."
The President and Mr. M. D. A. Gunatillake, M.P, did not participatein the discussion or in the voting.
By letters dated 9.12.91 (Pt) the 2nd Respondent informed thePetitioners of their expulsion setting out the aforesaid six reasons. On
before receiving P1, the 1st Petitioner wrote to the 2ndRespondent explaining that he was absent as the Notice wasreceived after 6.12.91. On 12.12.91, after receiving P1, the 2ndPetitioner wrote in similar terms to the 2nd Respondent, protestingthat the steps taken against him were illegal. Neither Petitionerrequested another opportunity of appearing before the WorkingCommittee; and even if they were under no obligation to make such arequest, it is relevant that the "Divaina" of 10.12.91 reported that on
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9.12.91 the 1st Petitioner said that –
(a) he had decided not to institute proceedings to challenge *heexpulsion because he knew what the decision would be;
{b) he would join the newly formed Democratic United NationalFront, and work to safeguard democracy;
the decision not to challenge the expulsion was reached afterdiscussions the previous day;
the other Member of Parliament, Muthu Banda, who had beenexpelled like him would act in the same manner;
as he had the legal right to attend Parliament until 7th January1992, he would participate in Parliamentary proceedingsduring that period;
they had personally no objection to the U.N.P. or PresidentPremadasa; but they would in the future too participate in thepublic campaign against acts, both undemocratic and harmfulto the Party, done in order to entrench the dictatorship of asingle individual; and
he intended to address the public at rallies of the Lalith-Gaminigroup.
The Petitioners did not deny or explain this report either then or inthe course of the proceedings. There is no evidence that theRespondents communicated the expulsion resolutions to theSecretary-General of Parliament, or took any action to make legalconsequences flow from those resolutions. The 2nd Respondentwrote similar letters dated 21.12.91 to both Petitioners, to theirColombo and constituency addresses. He tried to maintain that eachPetitioner had adequate notice, because the letters dated 3.12.91had been sent by express post, and “furthermore, the fact that youwere asked to attend the said meeting was known and spoken of toyour knowledge in the Parliamentary Lobby, and also appeared in the
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newspapers". This position the Respondents do not now seek tosupport; and what is relevant is the following:
"Nevertheless, without prejudice to the above and although youdo not seek such an opportunity or give any explanation inregard to your actions in your letter under reply, I write to informyou that if you so desire you could forward your writtenobservations stating your position in regard to the items Nos.(1) to (6) set out in my registered letter to you dated 9.12.1991(a further copy of which is annexed.) These written observationsshould reach me at the Party Headquarters "Sirikotha" by 4 p.m.on Friday, 27th December, 1991.
I shall thereafter inform you by letter (which will be hand-delivered at your Colombo address on or before 31st December1991, with copies sent under registered post) whether theWorking Committee, having considered your observations,decides to rescind or vary or confirm its decision of 6thDecember, 1991.
These letters were received on 23.12.91; they had four days time,until the 27th, to reply, but they were able to reply on the 26th:
"Answering the allegations contained in your letter of the 9thinstant I wish to state as follows: 1
1.At the outset I would like to place on record my objections to theholding of a disciplinary inquiry against me by the WorkingCommittee of the Party, as it is a body which is personallyselected and appointed by the Leader of the Party alone, andunder the Party constitution has no right, authority or power toconduct any disciplinary proceedings against a member of theParty and/or to expel such member. Under the constitution ofthe Party, it is the National Executive Committee which is vestedwith such right, authority or power. Further, neither the NationalConvention of the Party nor the National Executive Committeehas the power to delegate its functions relating to thedisciplinary control of members of the Party.
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No disciplinary action can be taken against me by the Party onthe alleged ground that I had signed the motion of resolutionsubmitted to the Speaker under Article 38 (2) of theConstitution, to impeach His Excellency the President of^riLanka, who is also the Leader of the Party, by reason of the factthat the decision taken and/or the act done by me in signingthe motion of resolution was pursuant to a right, power orauthority conferred on me as a Member of Parliament under theaforesaid Article of the Constitution, which cannot be reviewedor controlled by the Party and/or any of its committees.
No rule, convention or principle of the Party can override theConstitutional right, duty or responsibility conferred on me bythe Constitution of the country which I, as a Member ofParliament, have sworn to defend and uphold.
I deny having indulged in any deceitful action against the Partyand the Government Parliamentary Group.
I deny the allegation contained in paragraph 3 of your letter.
In view of the foregoing, the allegation contained in paragraph 4does not arise.
My absence from Parliament on 10th October 1991, is not aviolation of Party discipline.
7.1 deny that I have violated any provisions of the Partyconstitution.
8. I urge that a proper and lawful inquiry be held to inquire into theallegations contained in your letter, at which I propose toadduce further evidence to refute the allegations containedtherein.
The Working Committee met on 30.12.91; they endorsed the actiontaken by the 2nd Respondent in sending letters dated 21.12.91;and considered the Petitioners’ replies dated 26.12.91. Thelegal objection in paragraph 1 was rejected. The explanation inparagraph 2 was rejected, particularly because the matters alleged
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in the Notice had not been raised internally. In regard to paragraph 3.the view was taken that the Petitioner had deceived the Group andthe Party into believing that they were withdrawing their signatures tothS Notice and were joining in requesting the Speaker to reject it, butthat their letters of 9.10.91 showed that they were standing by theirsignatures and disputing the Speaker’s rejection thereof, althoughthey themselves had called upon the Speaker to reject the resolution;that those letters showed that they were affirming the allegations inthe Notice, although by their conduct they had conveyed theimpression that they were no longer supporting those allegations.Dealing with paragraph 4, the committee observed that thePetitioners had merely denied the charge although theuncontradicted newspaper reports showed the contrary. Paragraph 5was considered unacceptable because the Petitioners had not raisedthose matters internally. The Committee held that the Petitioners’unexplained absence from Parliament at voting time on 10.10.91 wasa breach of Party discipline. The Committee decided that on anumber of matters the Petitioners’ position was in conflict with therecent judgment of this Court; that the Committee did havedisciplinary authority; and that the Petitioners had not adduced anyfacts or reasons to justify further inquiry. Accordingly the Committeedecided not to reconsider or alter the decisions reached on 6.12.91;this was communicated to the Petitioners the same day. On 3.1.92these petitions were filed.
PETITIONERS’ APPLICATION TO LEAD ORAL EVIDENCEMr. Athulathmudali, P.C., sought to lead the oral evidence of thePetitioners on two matters, relevant to their absence at voting time on10.10.91: the fact and the contents of a telephone call by the 1stPetitioner to the Secretary to the Whip said to have been made on
and the precise contents of an admitted conversationbetween the 2nd Petitioner and Mr. M. L. M. Aboosally, M.P., Ministerof State for Plantations on 10.10.91. Mr. Choksy, PC., did not object.We requested Mr. Athulathmudali to state precisely what facts heproposed to establish by oral evidence.
In regard to the first matter, the 1st Petitioner had stated in hispetition that he had been a heart patient (and this was admitted by
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the Respondents); that he had chest pains on 10.10.91; that he wentto the Cardiology Unit, where, according to a treatment sheet, certaindrugs had been prescribed; that later he consulted a (private)General Practitioner, from whom he obtained the following medicalcertificate dated 10.10.91:
‘Mr. Ariyaratne Jayatilaka was seen by me on 10.10.91 with ahistory of pain in the chest and vertigo ? [sic] Anginal pain. Hehas been advised to rest for a few days.”
Immediately thereafter he averred that ”… he communicated hisstate of health to the Secretary to … the Chief Government Whip",giving the impression that the ‘communication” was made after thevisits to the Cardiology Unit and the private practitioner. However Mr.Athulathmudali P.C., stated that he sought to lead the 1st Petitioner’sevidence to prove that he telephoned the Secretary in the morningon 10.10.91 before taking treatment. When asked whether the 1stPetitioner would testify that he informed the Secretary that he wouldbe absent at voting time, Mr. Athulathmudali stated that he would notso testify, but that this was the necessary implication of his intimationas to his state of health. The pleadings could have, but unfortunatelydid not, make it clear whether it was in the morning or in theafternoon that the 1st Petitioner went to the Cardiology Unit; whetherany doctor examined him, and if so, recommended rest; whether theprivate practitioner was consulted before or after the vote, and didanything more than recording the history as related by the patient.One thing is certain; the 1st Petitioner did not inform the Secretary inthe morning that he would be unable to be present at voting time;and it is now common ground that there was no communication (byhim or on his behalf) later that day after his visits to the cardiologyUnit and the private practitioner. The Secretary deposed to thepractice of recording messages regarding the inability of Members toattend Parliament; that the 1st Petitioner had not intimated that hewould be absent; and denied that he had made a communication a§set out in his affidavit. It is clear that the 1st Petitioner’s position, evenif oral evidence was permitted, would have been that he did not atany time on 10.10.91 inform the Secretary that he would be absent atvoting time. He could perhaps have testified that when he said hewas not well he meant that he would not be able to be present but he
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did not say so in his affidavit. Since the 1st Petitioner had stated in hisletter of 9.10.91 that he intended to support the No-confidencemq^on, we asked Mr. Athulathmudali whether the 1st petitioner, if notfor ill-health, would have voted for that motion; Mr. Athulathmudalistated that if he had been able to attend Parliament, the 1st petitionerwould have voted with the Group, against that motion. There is noexplanation for the 1st Petitioner's failure to set out these facts in hisaffidavit or counter-affidavit; even in regard to the simple claim that hetelephoned the Secretary, he deposed that he “communicated”,leaving the Respondents in doubt as to whether such communicationwas written or oral, direct or indirect. It thus became clear that thereal purpose of oral evidence was, at best, to supply the deficienciesin the pleadings and affidavits, and not to give the Court theopportunity of resolving a conflict between the affidavits of theopposing sides, by seeing and hearing the witnesses and decidingon their credibility.
In regard to the second matter, the 2nd Petitioner had stated in hispetition that:
“ … he was advised by Mr. M. L. M. Aboosally … that he hadjust spoken to the President… and that if the Petitioner was notin a position to vote with the Government against the saidmotion, that [he] should not be present when the vote on thesaid motion was taken."
Mr. Aboosally's deposed that"… he met the Petitioner in Parliamenton 10.10.91 and in the course of conversation advised him to votewith the Government against the motion." Mr. Athulathmudali statedthat the 2nd Petitioner’s oral evidence was necessary to prove thatMr. Aboosally had informed him that the President had indicated, ineffect, that abstention would not expose him to disciplinary action. Itis intrinsically improbable that after a unanimous decision by thePresident and the Group at 5.00 p.m. on 9.10.91, conveyed throughthe Whip at 10.00 a.m. on 10.10.91, the President would soonthereafter convey an inconsistent direction through anotherintermediary.
Leaving aside that issue of credibility, it is impossible tounderstand why the 2nd Petitioner could not have directly made that
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allegation in his affidavit, or even in his counter-affidavit, by stating"… and that the President had said that if the Petitioner was not in aposition to vote with the Government against the said motion, thayieshould not be present …” Mr. Athulathmudali’s submission was thatthis was the necessary implication of the affidavit, but an affidavit(particularly on a point of crucial importance) must set out the factsclearly and precisely, leaving the other party and the Court in nodoubt as to the facts alleged. It was submitted that, if not for what Mr.Aboosally told him, the 2nd Petitioner would have voted with theGovernment Group against the motion; inexplicably, this was not setout in his affidavit. Here too the need for oral evidence was to curedefective affidavits, and not to enable the Court to determine which oftwo conflicting versions was more probable and credible.
The application to lead oral evidence was therefore refused.
ADMISSIBILITY OF PETITIONERS’ COUNTER-AFFIDAVITSIn the course of the submissions it was observed that the counter-affidavits dated 29.1.92, of both Petitioners had been sworn beforeone of the junior counsel appearing for them. Although it wassuggested that he been retained only after 29.1.92, in fact hisappearance had been marked on 13.1.92 and 27.1.92. In PakirMohidin v. Mohamadu Casim ® it was held by Bonser, C.J., that anaffidavit sworn before the deponent's own Proctor ought not to bereceived in evidence (see also Cadar Saibu v. Sayadu BeebiCT. Thisrule of practice has been consistently observed, and would apply toan Attorney-at-Law today. It is a salutary rule intended to ensure thatan affidavit is duly read; explained in the deponent’s own language ifit is in a language which he does not understand; understood; andthen signed. The failure to observe this rule is all the more serious inthis case: the 1st Petitioner is a person who had signed an importantdocument (the Notice) without reading it; and the 2nd Petitioner isone who had repudiated his signature on R2, and whose knowledgeof English, according to Mr. Athulathmudali, was not quite adequate.Mr. Athulathmudali moved for permission to file fresh affidavits inidentical terms, but sworn before an independent Justice of thePeace. However Mr. Choksy stated that the Respondents did notobject to the affidavits being received. It is in those circumstances
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that we refrained from rejecting these affidavits, without in any wayintending to weaken the authority of Pakir Mohidin v. MohamaduCqpsim.
JURISDICTION OF WORKING COMMITTEEIn Dissanayake v. Kaleel, we held that under the Party Constitutionthe National Executive Committee had the power to delegate itsdisciplinary powers to the Working Committee. Mr. Athulathmudaiisubmitted however that the disciplinary power sought to beexercised in these cases could not be delegated, because it wasonly the Executive Committee which could exercise that power, underRule 9(d):
"The selected candidate shall be called upon … to give apledge that … he will conform to the Principles, Policy,Programme and Code and of the Party [etc.]… If he fails to doso the Executive Committee shall take all necessary actionfor the punishment of such offender."
He contends that the Party Constitution does not authorise thedelegation of this power. Disciplinary powers are conferred in generalterms by Rule 8(3) (a), and Rule 9(d) does not add to those powers;rather, it imposes a duty on the Executive Committee to take action. Ihold that Rule 8(3) (m) authorises the delegation of all the powers ofthe Executive Committee, whether expressly enumerated (in Rule 8 or9, or elsewhere) or not.
Mr. Athulathmudaii next submitted that the Executive Committeehad not in fact delegated its disciplinary powers to the WorkingCommittee. The Petitioner originally averred that:
” … the resolution of the National Executive Committeepurporting to vest such powers in the Working Committee on
was not duly passed as it had been merely proposedbut not adopted”;
and produced the relevant minute:
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"… The following resolution was proposed by Mr. P. AlmonPeiris and seconded by Mr. Piyasoma Upali.
It is hereby proposed that the Working Committee of theParty be vested with full powers to carry out theresponsibilities and functions of the National executiveCommittee of the Party."
The 2nd Respondent thereupon produced the minutes of theExecutive Committee meetings held on 19.4.91 and 7.9.91; the latterrefers in identical terms to another resolution being proposed andseconded. In his affidavit he deposed to the fact that he was presentat both meetings, and that both resolutions were unanimouslyadopted after they were proposed and seconded. He also producedminutes of several meetings held in 1988 and 1989, referring tosimilar resolutions in the same way.
The 1st Petitioner in reply stated that he was present at bothmeetings, where "the resolution empowering the Working Committeewas not put to the House for adoption and was not thereforeadopted”. The 2nd Petitioner did not claim to have been present ateither meeting. It is important that the 1st Petitioner did not make anymention in his first affidavit of what transpired on 7.9.91, but chose todo so only after the 2nd Respondent referred to that meeting. Itseems very likely that he did not really pay much attention to whattranspired on 7.9.91. It is therefore more probable than not that theresolution was adopted by the Executive Committee at its meeting on7.9.91. Further, in the light of similar minutes at several previousmeetings it is difficult to resist the conclusion that the ExecutiveCommittee did, in some form or another, and at some time or theother, express its approval of at least some of those resolutions. TheWorking Committee, in my view, did have the delegated disciplinarypowers to deal with the Petitioners.
NATURAL JUSTICE: AUDI ALTERAM PARTEMIn Dissanayake v. Kaleel I set out my reasons for holding that theaudi alteram partem rule applied. Mr. Choksy did not seek to arguethat in the exercise of its disciplinary powers the Working Committee
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was not bound by the audi alteram partem rule. Mr. Choksy alsoconceded that the proceedings of the Working Committee,aynmencing with the Disciplinary Committee meeting of 3.12.91 andending with the letters of expulsion (P1) dated 9.12.91, consideredindependently of subsequent letters and events, were in breach ofthat rule. To assess the remedial effect of the subsequentproceedings, it is necessary to ascertain the nature and extent of thedeparture from Natural Justice: the more serious the breach, themore difficult to cure.
Firstly, the notice given was inadequate, as the Working Committeeshould have realized how uncertain it was that the letters dated
would be delivered in time; certainly, not in time to enable thePetitioners to prepare for an inquiry; hand delivery, telegrams andtelephone messages could have been resorted to, if meeting on
was crucial; had the Petitioners attended on 6.12.91, theywould have been entitled, as of right, to a postponement on accountof the inadequacy of the time and the lack of particulars. Secondly,and even more serious, the notices, did not specify the allegationsagainst the Petitioners; they were no more than an invitation for adiscussion, not even hinting at any danger of disciplinary action, letalone expulsion; even if the Petitioners had received the notices intime, but nevertheless kept away, the inadequacy of the notices wassuch as to preclude the Working Committee from coming to thefindings set out in their minutes of 6.12.91 and the letters of expulsion(P1), for such allegations had not been communicated to thePetitioners even in a general way. The default in that respect is grave,because these allegations had already been set out in detail in thereport of the Disciplinary Committee; a possible explanation might bethat the Working Committee wished to have a conciliatory discussionfirst, but this does not appear in their minutes or in the 2ndRespondent’s affidavits; further, although the Working Committee hadwished to discuss the Petitioners’ conduct as members of the Party,the 2nd Respondent’s letter dated 3.12.91 confined the subjectmatter of the proposed discussion to their conduct as appearedfrom their letters dated 9.10.91. Finally, the Working Committee hadseveral documents relevant to the Petitioners' conduct, but did notdisclose these to the Petitioners and invite their observations.
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Had the Petitioners instituted proceedings immediately uponreceipt of the letters of expulsion, they would necessarily havesucceeded. The question then is whether what transpired between9th and 30th December amounted to a waiver of this right or curedthese illegalities and irregularities. While it would normally beundesirable to treat newspaper reports as evidence, depending onwhether or not they had been contradicted, here the protagonistshad selected the press as one arena for battle. One such reportrelated to the 1st Petitioner's statement to the press on 9.12.91 thatboth Petitioners had decided not to challenge the expulsion, to jointhe new political Party, and to continue their public campaign. The2nd Respondent’s delay in sending letters dated 21.12.91 had beenexplained as caused by Party activities, the S.A.A.R.C. Summit, andthe S.A.F. Games. Those letters did not withdraw or suspend theexpulsion. Indeed the 2nd Respondent could not have done so. Theywere in effect, an invitation to the Petitioners to read the findings inthe letters of expulsion as charges or allegations, and to reply them.Perhaps the Petitioners might have been better advised to haverefused to do so, unless and until the expulsions were pro formawithdrawn or suspended; or to reply without prejudice to theirobjections to the validity of the expulsions. But they elected to replyto this putative charge sheet, by their letters dated 26.12.91. Mr.Athulathmudali sought to explain away the many shortcomings inthose replies on the basis that the Petitioners were by then preparingto file petitions in this Court; but that means that they were gettingready with the facts and documents to state their case in this Court,and hence could have submitted adequate replies with less difficulty;there was no lack of time, because they replied in three days,although they had one more day. He sought to draw a sharpdistinction between “explanations” and “observations", andstrenuously submitted that the Petitioners were not asked for an“explanation” but only for their “observations”, accordingly, he said,they need not have done more than to admit or deny the allegations.That is not how the Petitioners understood it, for they proceeded to“answer the allegations", not only by mere admissions or denials, butby stating their position on a number of matters.
In the context. I can see no material difference between the twophrases; an “explanation” is a statement making plain one's position,
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or accounting for one’s conduct. Here what was required was"observations" of such a nature that consideration thereof wouldenable the Working Committee to rescind, vary or confirm its previousdecision; a mere denial was therefore obviously insufficient. Further,written observations “stating your position" were called for, and thatwould be equivalent, for all practical purposes, to an explanation. ButI do not wish to rest my decision on such narrow ground. NaturalJustice is a living, growing and flexible concept. To judge complianceby reference to the use of a specific form or formula, or theobservance of a particular procedure or process, would inevitablyconfine and constrict a dynamic and expanding principle ofsubstantial fairness within the stifling and static technicalities of formand procedure. Thus the question whether the Petitioners have beendenied a fair hearing, or a fair opportunity to state their case, cannever be made to depend on whether they were asked merely for"observations", and not for "explanations”. In the context of all thathappened in December 1991, the four days allowed to them (ofwhich they needed only three) were sufficient to state their case; andthe manner in which they did so, had a direct bearing on the furtherquestion whether Natural Justice required an oral hearing andadditional evidence.
The allegations against the PetitionersAlthough both counsel approached the matter almost as if thesewere charges in criminal proceedings governed by the Code ofCriminal Procedure, in my view it is the substance and not the formthat is important. The essence of the allegations against thePetitioners was:
(a) Signing the Notice of resolution without prior internal
discussion within the Party;
(b) Continuing to support that Notice despite revocation andretraction of their Signatures without prior internaldiscussion;
Deceitful conduct towards the Party in regard to suchrevocation and retraction, as evidenced by their
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subsequent conduct (namely, their continued support ofthe Notice and their letters of 9.10.91):
Absence from Parliament on 10.10.91 and failure to votewith the group, and failure to tender any reason or excuseupto 6.12.91; and
Associating with 8 expelled members in a publiccampaign against the Party policies, and leadership, andthe Executive Presidential System, without prior internaldiscussion.
These allegations were said to constitute breaches of variousprovisions of the Party constitution.
In their reply to the first allegation, they admitted signing theNotice, but asserted that it was in the exercise of a Constitutionalright. In Dissanayake v. Kaleel, I held that a Member of Parliamenthas a constitutional right to sign such a Notice, in the exercise of anindependent discretion, and that this is a quasi-judicial power. I must,however, unequivocally, reject any suggestion that this right extendsto the signing of a document, contents unseen. Mr. Athulathmudaliattempted to justify the 1st Petitioner’s conduct as a commonpractice, affirming his statement that "in Parliament we have put our -signature [in this way?] to many other such documents”, andsubmitted that the 1st Petitioner by signing took responsibility forwhatever was in the Notice. The question is not his responsibility oraccountability after signing; but rather whether he genuinelyexercised his discretion before affixing his signature. Had thedocument related only to the 1st Petitioner’s personal affairs, it mighthave been a mere question of responsibility or liability; but this was apublic matter, relating to Constitutional powers and duties, and it wasa grave misuse of a Constitutional right to have signed, withoutknowledge of its contents, an indictment of the most serious kincfrknown to our law. The Petitioners did not deny that there was no priorinternal discussion, but claimed only that this question did not arisebecause the Notice was signed in the exercise of a Constitutionalright. In this Court, it was urged that since the President had said thatdisciplinary action would not be taken against Members who
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retracted their signatures, the Petitioners could not be dealt with onthis charge. Obviously, such a ’pardon" was not unconditional: if therefraction was not genuine, or was revoked, the offence would berevived and would attract disciplinary action. Mr. Choksy, however,did not press this aspect of the first charge. In regard to theallegation of continuing to support the Notice despite the retraction oftheir signatures, the Petitioners did not deny the fact of continuedsupport; their sole defence was that they signed the Notice in theexercise of their Constitutional right. Mr. Athulathmudali’s submissionwas that since signing was protected, everything done subsequently,arising from or referable to such signing, was equally immune fromchallenge: an argument quite inapplicable to the 1st Petitioner, whoseact of signing was not an exercise, but an abuse of his Constitutionalright. In any event, the question of continued support after retraction ofthe signatures stands on an entirely different footing to the original actof signing. Once the Petitioners represented to the Speaker and to theGroup that they retracted their signatures, alleging misrepresentation,deceit and malice, they could no longer be heard to say that theNotice was valid, or that they had signed it in the exercise of aConstitutional right (for they did not claim that the retraction was void).Here too the Petitioners did not deny the absence of prior internaldiscussion before continuing to support the Notice.
Second, the Petitioners were charged with deceitful conduct,based on two matters: continued support, subsequent to R1 and R2,and their letters of 9.10.91. As mentioned above, continued supportwas not denied, and their letter of 9.10.91 could not have beendenied. Undoubtedly, by signing R1 and R2 they gave the impressionthat they had never supported, or no longer supported, the Notice.Was that genuine or was that an attempt to deceive the Group? Theirsubsequent conduct, and their letters of 9.10.91 which make noreference to R1 and R2, reasonably give rise to the inference thattheir retractions were not genuine. In the case of the 2nd Petitionerany other inference is not reasonably possible, in view of his falsedenial that he signed R2. But even ignoring that for the moment, letme examine the theoretical possibility that the retractions weregenuine, and that they subsequently, and in good faith, changed theirminds again. This is not a reasonable inference for several reasons.The Petitioners did not say so in their letters of 9.10.91, asserting
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instead that the Notice was duly signed by them; it was a matter onwhich the burden of proof lay upon them, but even in their repliesdated 21.12.91 they did not take up this position; it has not eypnbeen adverted to in their pleadings in this Court. Instead of statingtheir position on these factual matters which were within theirexclusive knowledge, they merely denied that they had indulged inany, deceitful action. Further, in R2 they had repudiated theirsignatures as having been procured by misrepresentation anddeceit, actuated by malice, so that any change of mind must haveextended not only to the substance of the Notice but also to thosevitiating factors. To overcome this hurdle, Mr. Athulathmudali soughtto construe this allegation as meaning that the letters of 9.10.91constituted deceitful conduct, and urged that internal letters, writtenin order to raise matters of conscience, could not be the subject ofdisciplinary action. This is not tenable. The allegation is quite plain. Itis not that their conduct and/or their letters constitute deceitfulaction, but rather that "their conduct… and their letter dated 9.10.91… establish deceitful action towards the Party and the Group"; i.e.that subsequent conduct and letters prove that previous behaviour(the purported retraction) was deceitful. He further submitted that R1and R2 contained criticisms of the Speaker, and that the Petitionerstoo desired to give effect to their own criticisms of the Speaker'sconduct in regard to the Notice. That submission ignores the fact thatthe Petitioners expressly specified their sole reason for losingconfidence in the Speaker: namely for having wrongly treated theirsignatures on the Notice as invalid. The Speaker accepted their ownrepresentation and request to him, and it would be absurd to loseconfidence in him for that reason. If they had said that the Speakererred initially, in entertaining the Notice without adequateconsideration of the validity of the signatures, or had been guilty ofundue delay in acting upon R1 and R2,1 could have appreciated thissubmission. But they did not criticise the Speaker on that ground.
Coming to the third allegation, the Petitioners admitted thei#absence from Parliament at voting time on 10.10.91, and merelydenied that this constituted a breach of Party discipline. They did notdeny that they had failed to tender a reason or excuse for theirabsence. The 1st Petitioner claims that he had communicated hisstate of health to the Secretary to the Whip; on 10.10.91 itself he had
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obtained a medical certificate advising rest; Mr. Athulathmudali wasnot able to suggest any reason why a Member of Parliament shouldhgve obtained such a medical certificate except to excuse hisabsence on 10.10.91; and the 1st Petitioner is himself an Attorney-at-Law. If the truth is that the 1st Petitioner would have voted with theGroup, but for his ill-health, why was this simple position not stated inhis reply? The 2nd Petitioner claims a Presidential dispensation fromthe Group directive, conveyed through Mr. Aboosally: why did he notsimply say ‘Mr. Aboosally will tell you that the President had said thatI may keep away if i cannot vote with the Group, and if not for this Iwould have voted with the Group”? Mr. Athulathmudali submitted thatif an oral hearing had been given, all these matters would have beenclarified. But that is not the issue. The Petitioners were asked to statetheir position; they did so, and failed to deny simple allegations offact, and omitted to state factual matters peculiarly within theirknowledge; the scope of the inquiry was thereby narrowed, by them.Had they said, ‘We deny the allegations against us, addwill state our position after full particulars of the matters allegedare furnished", the position might have been different. Here theychose to “answer the allegations”, and by admitting (at least byimplication) the material facts they greatly narrowed the scope of theinquiry.
It is convenient to summarize at this stage the position in regard tothese three allegations. Signing the Notice and absence at votingtime on 10.10.91 were expressly admitted. Signing R1 and R2,continuing to support the Notice subsequently, the letters of 9.10.91,and the failure (upto 6.12.91) to tender any reason or excuse forabsence on 10.10.91 were admitted by necessary implication; in thisCourt they were not denied. The explanation that the Petitioners hadbona fide changed their minds, between 2.9.91 and 9.10.91, was nottendered to the Working Committee, or set out in the pleadings inthese proceedings. The reasons for absence on 10.10.91 were stated•for the first time in their petitions to this Court; and even then it wasnot suggested that they would otherwise have voted with the Group.Thus in respect of these three allegations the primary facts were notin question. Whether those facts established deceitful conduct was amatter of inference. Whether they established misconduct warrantingexpulsion was a matter of law. That misconduct would have brought
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the Party into disrepute (Rule 3(d)), was contrary to the directive ofthe Group (Rule 17(2)), and was generally in violation of fundamentalobligations of loyalty and honesty owed to the Party and to fellewmembers.
The fourth allegation was based on newspaper reports, but thiswas not stated in P1. No particulars were furnished as to the dates,the places, and the criticisms complained of. This allegation wasdenied by the Petitioners and hence the Working Committee couldnot have come to a finding without an inquiry into the facts. AlthoughMr. Athulathmudali made no complaint in that respect, it is alsounsatisfactory that at no stage did the Disciplinary Committee or theWorking Committee identify the particular newspaper reports reliedon. In the course of the proceedings in this Court a handful ofnewspaper reports were produced by the Respondents, relating tothe period upto 6.12.91, which were not denied by the Petitioners.These reports show some degree of association with the 8 expelledMembers, and some criticism of the President and the ExecutivePresidential System. Further, the "Divaina" report of 10.12.91 (whichwas not one of the reports acted on by the Working Committee)established the Petitioners' attitude: they would address public ralliesof the expelled Members, and join their party, and oppose the Partyleadership. However, all these do not lead to an irresistibleconclusion of guilt. Further inquiry, disclosure of particulars, and anoral hearing was therefore necessary. However, these proceedingsare not by way of review alone, and consideration of the merits is alsorequired. Here again the Petitioners' legal submissions are found tobe undermined by their pleadings: for in their counter-affidavits eachPetitioner replied thus:
“I deny that any of the alleged acts if committed by me isunlawful. I was not the only one who pursued that course ofconduct, e.g. Dr. P. M. B. Cyril and Mr. Ravindra Samaraweera… Dr. P. M, B. Cyril who appeared on the platform of the sc?called rebels and who in his speeches had attacked thePresident…"
An affidavit must state the facts within the personal knowledge of thedeponent. If the Petitioners had not committed the acts alleged, they
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could have directly denied the allegation in a straightforward manner;if they wished to add that Dr. Cyril had not been dealt with forconduct similar to the acts alleged, they could have said this as well.But what did they mean by the conditional denial (“if committed byme”) ; followed by the mitigatory admission (“I was not the onlyone") ? I find this averment to be ambiguous as well as evasive. Inthe context of the Petitioners’ course of conduct, the severalunsatisfactory features of their affidavits, and the "Divaina" report of10.12.91, I am constrained to hold that there is no denial of thisallegation. Assuming in their favour that such criticisms were, ormight have been, within the scope of their fundamental right tofreedom of speech, (for the reasons stated in Dissanayake v. Kaleel),yet the gravamen of that charge is the undoubted lack of priorinternal discussion.
In this state of the facts, it is necessary to consider whether theaudi alteram partem rule had been complied with. This is not a casewhere the Petitioners had asserted that the expulsion decision of6.12.91 was void, and refused to participate in the subsequentproceedings; or participated, without prejudice to that position; and itis unnecessary to consider that situation. Here the Petitioners choseto participate in the subsequent proceedings; they were afforded anopportunity to state their case, and did so; the facts andcircumstances were not at all complex, and they could without anydifficulty have stated their case in three or four days; and when theydid so, the facts ceased to be in dispute except in regard to thefourth allegation; thereupon an oral hearing became unnecessary inregard to the first three allegations. They were, however, entitled toparticulars and an oral hearing in regard to the fourth allegation, buttheir pleadings in this Court indicate that on the fourth allegation toothe facts were not really in dispute. In any event, the other threeallegations were sufficiently grave to render expulsion a proper andappropriate penalty, and the defect in procedure in regard to the'fourth was not fatal.
While Natural Justice entitles a person to a fair and accuratestatement of the allegations against him (Ridge v. Baldwin,4Stevenson v. United Road Transport Union<*', Labouchere v.Wharncliffe(6)), the mere fact that he had not been given formal noticeof all the matters in which his conduct was to be called in question
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did not necessarily entitle him to contend that the inquiry was inbreach of the audi alteram partem rule. Thus in Davis v. Carew-Polel7)notice was given to the Plaintiff in respect of an allegation that he hgdtrained a horse contrary to the National Hunt Rules. At the inquiry,without prior notice, his activities in regard to the training of two otherhorses were also considered, and an adverse order was made. No factwas in dispute in regard to the Plaintiff concerning the other twohorses. It was held that the Plaintiff was not prejudiced by the lack ofnotice and therefore failed in his contention that there had been abreach of the audi alteram partem rule. In Russell v. Duke of Norfolk ™,a trainer whose license was withdrawn for doping contended that theinquiry was contrary to the principles of Natural Justice because onlypart of the analyst's certificate was read to him, omitting that portionwhich identified the particular drug. This omission was held insufficientto constitute a breach of Natural Justice.
The Effect of a Subsequent HearingI now turn to the question whether a subsequent (fair) hearing aftera decision made in breach of the audi alteram partem rule, canvalidate that decision. This is not a case of a deliberate breach ofNatural Justice, as the Working Committee attempted to give notice,and it is unnecessary to consider that situation. Even in other cases,"since the initial decision … will almost inevitably have a prejudicialeffect, the law ought to be slow to admit such dubious procedure"says Prof. Wade who refers to several precedents (AdministrativeLaw, 5th Ed., pp 490-491); this passage was cited by Mr.Athulathmudali, who however did not discuss the several authoritiestherein cited, despite my invitation to do so. It is also discussed byProf. S. A. de Smith (Halsbury's Laws, Vol. I, 4th Ed. paragraph 77)Decisions from Canada, Trinidad, England, Singapore and Australia,in a variety of situations, have been cited by them, and these I mustnow consider, without the benefit of counsel's submissions, in order todetermine the validity of expulsions resolved upon after "suchdubious procedure.”
In Ridge v. Baldwin,t4) the relevant facts were that:
"The watch committee were under a statutory obligation … to
comply with the regulations made under the [Police] Act. They
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dismissed the appellant [on 7th March] after finding that he hadbeen negligent in the discharge of his duty. Yet they hadpreferred no charge against the appellant and gave him nonotice. They gave him no opportunity to defend himself, or to beheard. Though their good faith is in no way impugned, theycompletely disregarded the regulations and did not begin tocomply with them." (at p. 113)
“On March 18 [the appellant's solicitor] was given not only a fullbut a courteous hearing by the watch committee but receivedno indication of the nature of the charges which his client had toanswer, notwithstanding his repeated statements that he did notknow what they were. It is plain, therefore, that if there were afailure on March 7 to give justice to the appellant this was notcured on March 18 when the watch committee confirmed theirprevious decision. At this hearing it was made plain by [thesolicitor] that his client was not seeking reinstatement but onlyhis pension rights of which he had been deprived by hisdismissal. This position is maintained by the appellant throughhis counsel before Your Lordships.” (at p. 129)
Lord Reid held:
“Next comes the question whether the respondents failure tofollow the rules of natural justice on March 7th was made goodby the meeting on March 18. I do not doubt that if an officer orbody realises that it has acted hastily and reconsiders the wholematter afresh, after affording to the person affected a properopportunity to present his case, then its later decision will bevalid. An example is De Verteuil's case ,,°l. But here theappellant's solicitor was not fully informed of the chargesagainst the appellant and the watch committee did not annulthe decision which they had already published and proceed tomake a new decision. In my judgment, what was done on thatday was a very inadequate substitute for a full rehearing. Evenso, three members of the committee changed their minds, and itis impossible to say what the decision of the committee wouldhave been if there had been a full hearing after disclosure to theappellant of the whole case against him, I agree with those of
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Your Lordships who hold that this meeting on March 18thcannot affect the result of this appeal.- (at p. 79)
A case from Canada, Posluns v. Toronto Stock Exchange9', can becontrasted. The Board of Governors of the Stock Exchange held aninquiry on 28th February into certain transactions entered intobetween the Daily Company (a member firm of which the Appellantwas a director) and another firm (Lido).
"The appellant was present at the hearing of February 20th atwhich a statement was read reciting the facts known to theBoard concerning the transactions in question and he wasgiven an opportunity to explain his association with Lido. Afterconsidering the matter amongst themselves, the members ofthe Board called in the representatives of the Daly Companyand announced that they were unanimously of the opinion thatthe company was guilty of six of the seven acts of omissionpreferred against it, including the first. After representations hadbeen made on the company's behalf with respect to penalty, thematter was again considered and it was decided to impose themaximum fine of $5,000 on R. A. Daly, Jr.
There then occurred what the trial Judge referred to as anunfortunate error because the Board, instead of accepting thefact that it had completed the inquiry with respect to the DalyCompany upon which it had properly embarked, went on todeal independently and additionally with the appellant … Afterrelatively little discussion, it was unanimously resolved that allprior consents given to the appellant as a director, officer andshareholder of the Daly Company be terminated forthwith and itwas the general understanding that his association with theDaly firm was to be severed in all respects.
Although the President of the Daly Company was informed otthe resolution withdrawing the appellant’s approvals, no actionwas at that time taken by the Board to put the terms of theresolution into effect and on the following day representationswere made to the Board that there should be a rehearing withrespect to Posluns personal position. The Board acceded to this
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request and a hearing was set for March 2nd on which date thesame members of the Board were present who had conductedthe February 28th meeting and a statement was read reviewingwhat had transpired at the meeting in so far as it related to theappellant. The appellant was represented at this meeting bycounsel who was asked whether he wished to call additionalevidence and replied that there was no dispute about theevidence but only as to the interpretation to be placed upon it.The appellant's counsel then made full representations to theBoard and concluded with a plea in mitigation urging that thepublication of the resolution withdrawing the approvals woulddo irreparable damage to the appellant and his family. Therebeing no dispute as to the facts, the members of the Boardadjourned to consider the matter in light of the interpretationplaced on them by the appellant's counsel and in light of thesubmissions which he had made concerning the penalty to beimposed; in the result they concluded that the appellant’sconduct was such as to warrant the withdrawal of the Board'sapprovals of his association with the Daly Company, but theyagreed that the resolution directing that withdrawal passed atthe meeting of Februrary 28th would not be acted upon orpublished if the appellant resigned by March 10th. TheAppellant, however, decided not to tender his resignation and aletter was accordingly forwarded from the Board to the DalyCompany giving formal notice of the resolution." (at p. 168-169)
The difference between the two cases was summed up thus:
From the above recital of the facts it will be apparent that thecircumstances in Ridge v. Baldwin were quite different fromthose in the present case. In Ridge v. Baldwin the appellant wasnever told of the case which he had to meet, whereas Mr.Posluns knew what was complained of in his conduct somedays before the first hearing. In Ridge v. Baldwin the appellantwas given no opportunity to be heard at either meeting,whereas Posluns gave evidence and had a full opportunity toexplain himself at the first hearing and declined, through hiscounsel, to add anything at the second hearing to the evidencewhich had already been taken. In Ridge v. Baldwin the plea
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made by the chief constable’s solicitor at the second hearingthat his client should be permitted to resign was of no avail,whereas after listening to the submissions of Poslun's solicitor atthe March 2nd hearing, the Board of Governors gave him tendays in which to resign and withheld official publication of theresolution passed against him until that period expired andPosluns had declined to resign.
In my opinion, the contention that the proceedings at themeeting on March 2nd were in the nature of an appeal from thedecision of February 28th rather than a rehearing, leaves out ofaccount the fact that the Board gave the appellant’s solicitor fullopportunity to call any evidence he pleased at the secondhearing and that it was he and not the Board who made theelection to abide by the evidence taken in February. He thenreviewed all the circumstances afresh and advanced at everyturn the construction of the facts which was most favourable tohis client. In the result, although the Board of Governors did notchange their ruling, they offered to withdraw it altogether if theappellant would resign. In my view also it is inconsistent tospeak of the March 2nd hearing as an appeal when thedisputed resolution was not formally published until March10th." (at p. 173)
De Verteuil v. Knaggs "0,1 falls in between. A statute provided that:
“If at any time it appears to the Governor, on sufficient groundshown to his satisfaction, that all or any of the immigrantsindentured on any plantation should be removed therefrom, itshall be lawful for him to transfer the indentures of suchimmigrants for the remainder of their respective terms of serviceto any other employer who may be willing to accept theirservices and pay the remaining indenture fee".
Upon a complaint by the Protector of Immigrants in regard to thetreatment and conditions of immigrants on the appellant’s estate, on16.12.1915 the Governor, ex parte, and without affording anopportunity to the appellant to make any answer or explanation,made an order for the removal of the indentured immigrants from the
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appellant's estate, and for the transfer of their indentures to someother employer; it does not appear that a particular employer wasspecified, The first intimation which the appellant received was in aletter dated 20.12,1915 from the Protector of Immigrants setting outfour allegations. Thereupon the appellant sought and obtained apersonal interview with the Governor on 23.12.1915, at which he wasgranted a fair opportunity of placing his answer to the allegations.Further clarification was furnished by letter dated 27.12.1915. On7.1.1916 the Colonial Secretary informed the appellant that theGovernor did not feel justified in cancelling the order. The appellantmade two further attempts to persuade the Governor, who finallyruled that the immigrants must be removed and transferred toanother estate the manager of which was willing to accept them. ThePrivy Council held that the Governor “did not proceed without givingfair notice to the appellant of the charges made against him, orwithout giving him a fair opportunity to make an answer to suchcharges." This case is similar to Ridge v. Baldwin in that the initialorder, taken in isolation, was in breach of Natural Justice; it differshowever from that case, and is similar to Posluns case, in that nosteps were taken to publish the order or to make it enforceable, or tomake legal consequences flow, and in that in subsequentproceedings a full and fair opportunity of meeting the case againsthim was given.
Those were cases of re-hearing by the same authority, Theprinciple that a failure of Natural Justice at the original hearing maysometimes be cured by a "full re-hearing” by another body wasrecognised by the Privy council in Piliai v. Singapore City Council(11>.Having held that the rules of Natural Justice did not apply to the firsttribunal, yet the Privy Council observed that even if they did apply,the subsequent proceedings cured the defect. Although they were byway of “appeal", those proceedings were in the nature of a re-hearingand evidence was called de nova. This was followed in Stringer vMinister of Housing In Calvin v. Carr"31, the Privy Council dealingjfvith an appeal from New South Wales, recognised that there was noabsolute rule, either way, as to whether defects in Natural Justice atan original hearing can be cured through proceedings by way ofappeal or re-hearing {at pp. 447-448); everything depends onwhether after “examination of the hearing process, original andappeal as a whole", the Court is satisfied that "there has been a fair
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result, reached by fair methods’; whether “the appellant’s case hasreceived, overall, full and fair consideration”, (pp. 448, 449, 452).
Applying these principles, (a) the initial breach of Natural Justlfcewas not deliberate; (b) action was not taken to enforce, or to makelegal consequences flow from, the order of expulsion, and the factthat the Petitioners participated in the subsequent proceedings gavethe Working Committee a locus poenitentiae; (c) the allegations werefairly and adequately, though not fully and precisely, communicated;and (d) a fair opportunity was given to the Petitioners to state theircase, and an oral hearing became unnecessary as the facts were 'undisputed in consequence of their replies. I hold that the Petitioners,case had received – overall – full and fair consideration, and thatthere had been a fair result, reached by fair methods.
In coming to this conclusion, I have not overlooked Mr.Athulathmudali’s submissions that (a) the elaborate ‘Guidelines forDisciplinary inquiries” adopted by the Party were not followed, and(b) the Petitioners had no opportunity of being heard in mitigation,while I agree that those guidelines embody exemplary procedures tobe followed by Disciplinary Panels, they are not binding on theWorking Committee. Even if the Working Committee ought to havecomplied with the spirit of those Guidelines, the ultimate question iswhether, in the unusual circumstances of this case, there has beenoverall, a fair hearing. In regard to mitigation, the misconduct was soserious (and I have dealt with this aspect in Dissanayake v. Kaleel) asto make mitigation impossible. Apart from that, in response to aquestion from us, Mr. Athulathmudali submitted that the matters to beurged in mitigation were (i) the explanations for absence on 10.10.91,
(ii) that Dr. Cyril and Mr. Samarawera were excused, and (iii) that thePetitioners voted with the Government on the Budget. Theseexplanations should have been submitted, in defence and inmitigation, to the Working Committee. The conduct of Dr. Cyril andMr. Samaraweera were far less serious, and could not b£characterized as deceitful. Voting for the Budget was more a matterof the political survival of the Petitioners, rather than of support for theGroup. In any event, on 9.12.91 the Petitioners had virtuallyrepudiated the Party, and had cast their lot with the new D.U.N.F.
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6. CONCLUSION«l determine that the expulsion of the Petitioners was valid. Theproceedings of the Working Committee upto 6.12.91 were irregularand dubious, and could not have been sustained but for thesubsequent proceedings, in regard to which complex questions oflaw arose. I therefore refrain from making any order for costs in favourof the Respondents.
KULATUNGA, J.These applications (Special) Nos. 1 and 2/92 were of consentheard together as they involved the same issues and restedsubstantially on the same facts. The petitioners are Members ofParliament elected at the General Elections held in February. 1989 asMembers of the United National Party (The 4th respondent) which isa recognised political party within the meaning of the ParliamentaryElections Act No. 1 of 1981. The 1st, 2nd and 3rd respondents arethe Chairman, General Secretary and General Treasurer of the U.N.P.respectively; they are also members of the National ExecutiveCommittee and the Working Committee of the U.N.P. The 5threspondent is the Secretary-General of Parliament against whom norelief has been claimed; he has been joined only for the purpose ofgiving him notice of these proceedings.
The petitioners have invoked the jurisdiction of this Court under theProviso to Article 99(13) (a) of the Constitution. Each of them seeks adetermination that his expulsion from the membership of the UNP,communicated by the letter dated 09.12.91 under the hand of the2nd respondent, was invalid. The decision for the expulsion of thesepetitioners has been made by the Working Committee of the UNP byits resolution adopted at a meeting held on 06.12.91. A copy of theMinutes of that meeting has been produced marked R10. Thegrounds lor the expulsion of both petitioners are identical and are setout in the said resolution and in the letters sent to them on 09.12.91copies of which have been produced marked P1 in each of theseapplications. Under Article 99(13) (a) of the Constitution the seats ofthese petitioners will become vacant by reason of their expulsion
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from the membership of the UNP and they will be deprived of theirstatus as Members of Parliament unless they obtain a determinationfrom this Court that the impugned expulsion was invalid.
FACTSThe petitioner in application No. 1 has been a member of the UNPfrom 1970 and was elected as a MP in 1977 and in 1989. He was amember of the NEC of the UNP from 1977, and functioned as DistrictMinister for Gampaha during the First Parliament. After his election in1989 he was appointed a State Minister and later as a ProjectMinister which office he held until he resigned therefrom on 18.09.91.The petitioner in application No. 2 has been a member of the UNPfrom 1960 and a MP from 1989.
EVENTS LEADING TO THE EXPULSION OF THE PETITIONERSFROM THE UNPPROCEEDINGS FOR THE REMOVAL OF THE PRESIDENTThe petitioners have been expelled for conduct alleged to beviolative of the provisions of the UNP Constitution (P2) and arising byreason of certain activities by them in the aftermath of a campaign bysome MPs to take proceedings under Article 38(1) (e) of theConstitution read with Article 38(2) for the removal of His ExcellencyRanasinghe Premadasa from the Office of President of the Republicof Sri Lanka. Under Rule 7(1) of the UNP Constitution The President,being a member of the UNP, is also the Leader of the Party. A copy ofthe notice of resolution given to the Speaker under Article 38(2) (a)(sometimes hereinafter referred to as the impeachment motion) hasbeen produced marked P38. It is undated and bears no signatures.The petitioners state that the said notice of resolution had been#signed by not less than one-half of the whole number of Members ofParliament; and that on 28.08.91 the Speaker informed the Presidentby writing that he had entertained the said resolution in terms ofArticle 38(2) (b) and further drew the attention of the President toProviso (C) to Article 70(1).
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WITHDRAWAL OF PROCEEDINGS AGAINST THE PRESIDENT#The petitioners further state that subsequently, they with othermembers of the Government Parliamentary Group by a writing dated
addressed to the Speaker withdrew and revoked theirsignatures and consent to the aforesaid notice of resolution; they alsosigned a resolution adopted by the Government Parliamentary Groupon 02,09.91 which, inter alia, called upon the Speaker to reject thenotice of resolution. The respondents have produced thesedocuments marked R1 and R2 respectively and state that they werepresented to the Speaker on 03.09.91. Both documents state that thenotice of resolution does not have the requisite number of signaturesunder Article 38(2) (b). In R1 the MPs state that they do not supportthe notice of resolution and that it should not be placed on the OrderBook or Paper. In R2 they declare their confidence in the President,condemn the action of interested individuals and groups who .haveobtained the signatures of certain Government and Opposition MPsthrough misrepresentation and deceit, express surprise and dismaythat the motion has been entertained with much haste and withoutverification by the Speaker and call upon the Speaker to reject "theillegal, unconstitutional and malicious move to remove the Presidentfrom Office".
RESIGNATION OF PETITIONER NO. 1 FROM MINISTERIALOFFICE
On 18.0-9,91 the petitioner in application No. 1 tendered hisresignation from-the Office of Minister. This was accepted by thePresident only on 02.11.91 (P5). In the meantime this petitioneraddressed a letter to Hon. Ranil Wickremasinghe on 19.09.91 (P4) inwhich he set out the following matters as cause for his disillusionmentas a member of the Government Parliamentary Group.
I
His position as a MP has been reduced as he can do hardlyanything for his constituents.
He cannot push through work at Ministry level due to the attitudeof bureaucrats.
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He is not being consulted on acquisitions of land.
Failure of “Janasaviya” in his electorate by reason of vitalactivities in that connection being entrusted to bureaucrats, to theexclusion of MPs who are kept in the periphery.
Failure of the Government to grant a request by him for ensuringthe future security of his family.
The petitioner proceeded to state that he was not a member of thegroup that started the movement against the Party; that he signed thenotice of resolution “even without seeing it" as in the case of manyother documents which they sign in Parliament; after some time,when accusations and counter accusations were being made, hebegan to understand what it was all about; that the President read outa list of allegations and denied them; and that there were rumours,gossip and newspaper stories which the President should haveexplained. As this was not done, he was unable to explain the truth tothe voters. He therefore wished to resign his portfolio and become a“free UNP Member of Parliament”.
PUBLIC CAMPAIGN AGAINST UNP LEADERSHIPPETTnONERS’ ROLEPETITIONERS’ VERSIONThe petitioner No. 1 states that between August-December 1991 headdressed public functions in Divulapitiya supporting theGovernment. As additional proof of their support for the Government,learned President's Counsel for the petitioners produced, with theleave of Court the Hansards of 22.11.91 (Y) which shows that bothpetitioners had voted with the Government in favour of theAppropriation Act 1992.
RESPONDENTS’ VERSIONThe 2nd respondent states that during this period the petitionersassociated themselves at public political meetings with expelled UNPmembers. He also produced newspaper reports of such activities
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and states that the petitioners have not denied the correctness ofsuch reports. These reports clearly show that both petitioners hadjqjned the “rebel" UNP MPs led by Messrs Lalith Athulathmudali,Gamini Dissanayake and G. M. Premachandra. Thus R15A andR15B, news reports in “Island" and “Lankadipa” respectively andR15E "Lankadipa" 23.09,91 carry news of the petitioner No. 2 joiningthe “rebels" at a public rally held at Kandy to explain theimpeachment motion. This petitioner was garlanded by Mr. G. M.Premachandra on his arrival at the venue of the meeting and wasagain garlanded by Messrs Lalith Athulathmudali and GaminiDissanayake when he came on the stage, amidst the lighting ofcrackers and applause. R15E carries his photograph taken when hewas being carried to the stage by supporters.
R1 5C “Divaina" 23.09.91 carries news of a press interview givenby the petitioner No. 2 and his speech in Kandy. He told the pressthat under the Executive Presidential System of Government, thepower of MPs had been reduced to the extent that they are not evenallowed to issue letters for obtaining jobs. This he explained was thereason for his joining “Lalith – Gamini Group" In his speech at Kandy,he admitted the signing of the impeachment motion but denied thathe signed the resolution in support of the President which had beenadopted by 116 MPs (R2). At that meeting Lakshman Seneviratne MPaccused the Government of attempting to bribe him with an offer ofMinisterial Office. R15D “Lankadipa” 23.09.91 carries news of amedia conference held at the residence of Mr. Lalith Athulathmudaliat which the petitioner No. 2 once again denied his signature on R2and demanded that the signature purporting to be his signature beexamined by the Examiner of Questioned Documents.
R15B "Lankadipa" 27.09.91 produced in application No. 1/92 is anews report announcing the holding of a series of public rallies by•Lalith – Gamini Group" in Kegalle, Badulla, Galle and Kalutarabetween 27th September and 7th October, 1991. The name ofpetitioner No, 1 appears in R15B as one of the MPs scheduled tospeak on the subject of the impeachment motion. R15C “Divaina"
is a news report of the public rally held at Kalutara by thedissident UNP MPs. The petitioner No. 1 speaking there said that
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they would fight on until victory, against all odds; that the UNP wasailing; and that when he consulted an astrologer on this, he was toldthat no treatment will cure the illness because the Party wasbedevilled. As such, they had launched a campaign to exorcise thedevil. R15D “Divaina" 10.12.91 report a press interview given by thispetitioner on the previous day at which he said that as he knew whatthe judgment would be, he decided after a discussion not tochallenge his expulsion in Court. Instead, he proposed to join thenewly formed Democratic United National Front and to dedicatehimself to the task of safeguarding democracy. He added that thepetitioner No. 2 would do likewise.
R15F "Island" 22.01.92 is a news report of a press conferenceheld by “rebels” Lalith Athulathmudali, Gamini Dissanayake, G. M.Premachandra and others along with the petitioners for celebratingthe recognition of the DUNF by the Commissioner of Elections. Theytold the press "only Premadasa's Party opposed the registration ofour Party" but amidst strong opposition and state pressure theCommissioner of Elections had delivered his verdict.
PETITIONERS’ PLEADINGS REGARDING ALLEGED ASSOCIATIONWITH UNP “REBELS”Learned President's Counsel for the petitioners submitted that thealleged association of the petitioners at public meetings held by theexpelled UNP MPs has not been proved and referred us to thecounter affidavits of the petitioners wherein they have specificallyanswered this allegation. Each of them has averred thus:*
“I deny that any of the alleged acts if committed by me is unlawful.. . . I was not the only one who pursued that course of conduct, e.g.Dr. P. M. B. Cyril and Mr. Ravindra Samaraweera. I state thatDr. P. M. B. Cyril who appeared on the platform of the so-calledrebels and who in his speeches had attacked the President… hasnot been subjected to any disciplinary action".
If as it appears, the petitioners have neither denied nor admittednor stated that they are unaware of the allegation, the result is thatthere is no averment traversing the allegation and the Court is left
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with the uncontradicted evidence placed by the respondents. In thisstate of affairs, I hold that the alleged association has been proved.Tfee petitioners have also failed to traverse the averment contained inthe 2nd respondent’s affidavit that the petitioners have notcontradicted the newspaper reports except to state that two of thesereports published in January 1992 are untrue. The said reports statethat the petitioners have been appointed district organisers for thenewly formed DUNF; but the petitioners deny this. In view of thisdenial, I have excluded the said two news reports from thestatements of facts.
DR. P. M. B. CYRIL AND RAVINDRA SAMARAWEERADr. Cyril joined the UNP "rebels'' at a public rally in Galle and in hisspeech said that he did so in the interests of democracy. Mr. LalithAthulathmudali in his speech promised to bring out the members ofthe ruling party one by one to their camp. (P16 “Island" 06.10.91 andP17) Dr. Cyril also attended the rally held by the dissidents atKalutara and made a speech there (P18 “Divaina” 08.10.91). On
Dr. Cyril voted against the no-confidence motion on theSpeaker. Ravindra Samaraweera was absent in Parliament (P19“Divaina" 11.10.91). Thereafter Dr. Cyril told a public rally inRatnapura that he voted against the no confidence motion in theinterests of party cohesion. (P20 “Divaina” 14.10.91). On 15.10.91 headdressed a letter (R 18) to the 2nd respondent wherein he gave anundertaking that in future he will not participate in meetings ordiscussions where Party Policies and Principles are criticised andreaffirmed his loyalty to the Party and its Leadership. He alsopromised to abide by the Party Constitution. On 25.10.91, RavindraSamaraweera also gave a letter (R19) reaffirming his loyalty to theParty and its Policies, Principles and Leadership. He also informedthat he had attended Parliament on 24.10.91 and voted with thegovernment Parliamentary Group approving the Proclamation for thecontinuation of the Emergency. In view of these undertakings, theUNP Working Committee decided on 04.11.91 not to take disciplinaryaction against Dr. Cyril and Ravindra Samaraweera. It was alsodecided to await the judgment of the Supreme Court in pendingcases, before taking proceedings in the case of the petitioners (R20).
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UNP POLICY AGAINST PARTY MEMBERS WHO WITHDREWSUPPORT FOR THE IMPEACHMENT MOTIONAccording to a statement which was widely circulated in the presson the 19th and 20th of September, 1991, His Excellency ThePresident had announced that no disciplinary action would be takenagainst MPs who had retracted their signatures to the impeachmentmotion (24, P25, P26, P27, P28, P29, and P30). This issue was againraised at a press interview given by the 2nd respondent in December1991. On being asked whether the MPs who signed theimpeachment motion might join the DUNF through fear ofvictimisation, the 2nd respondent said that these MPs had promisedto abide by Party discipline; the Party trusted them and consequently,they will not be victimised. (P23 “Island" 15.12.91).
OCCASION FOR DISCIPLINARY PROCEEDINGS AGAINSTPETITIONERS* NO CONFIDENCE MOTION AGAINST THE SPEAKERPursuant to the representations of Government MPs contained inR1 and R2, the Speaker announced in Parliament on 08.10.91 thathaving inquired into the matter, he was of the view that the notice ofresolution did not have the required number of valid signatures andaccordingly, it could not be proceeded with. Thereupon theOpposition moved a motion of no-confidence in the Speaker whichwas scheduled to be debated on 10.10.91.
PETITIONERS’ REQUEST FOR A FREE VOTEFAILURE TO ATTEND PARLIAMENT ON 10.10.91On 09.10.91 both petitioners addressed letters to the ChiefGovernment Whip wherein they complained that after they hadsigned the impeachment motion in the exercise of their rights und^Article 38(2) of the Constitution, the Speaker had made an erroneousstatement regarding the validity of their signatures to the motion inderogation of their privileges as MPs and hence wished to vote infavour of the no-confidence motion against the Speaker. Accordinglythey requested the Chief Whip to obtain for them permission for a
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"free vote" (R3). Their request was rejected by the GovernmentParliamentary Group at its meeting held at 5.00 p.m. on 09.10.91,which neither petitioner attended. The Group decided to vote againstttlte no-confidence motion and to instruct the petitioners also to voteaccordingly, (see the affidavit of the Chief Government Whip R4 andannex X1 thereto), A letter dated 09.10.91 communicating thisdecision was delivered to the petitioner No. 2 in Parliament at 10.00a.m. on 10.10.91 and his acknowledgement obtained on the copythereof, (see R4 and annex X2 thereto). However, he was not presentin Parliament at the voting on the no-confidence motion. Thepetitioner No. 1 was not available in the night of the 9th when theSecretary to the Chief Whip telephoned him to his residences, inColombo and at Divulapitiya, to communicate the decision of theGovernment Parliamentary Group. Thereafter, he too absentedhimself at the voting time in Parliament on 10.10.91.
THE PETITIONERS’ EXPLANATION FOR FAILING TO ATTENDPARLIAMENTThe petitioner No. 1 states that he had been a heart patient forsome time (a fact which Mr. Choksy PC. conceded during theargument): that on 10.10.91 he had chest pain and visited theCardiology Unit of the General Hospital where he obtained drugs, inproof of which he produced P6, copy of hospital record; he then meta private medical practitioner who recommended him rest for a fewdays (see P7 Medical Certificate dated 10.10.91). The petitioner saysthat he communicated his state of health to the Secretary to the ChiefWhip. He does not clarify the mode of his communication or the timeof such communication. The Secretary to the Chief Whip in hisaffidavit states that the petitioner did not at any time inform him of hisinability to attend Parliament on 10.10.91.
The petitioner No. 2 states that Mr. Aboosally MP met him inParliament on 10.10.91 and said that he had spoken to the President,and that if the petitioner could not vote with the Government againstthe no-confidence motion, the petitioner should not be present whenthe vote on the said motion was taken. Acting on the saidrepresentation, the petitioner was not present in the House at the
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voting time. In other words, the petitioner contends that the Presidentoffered him the option to be absent which he accepted.Mr. Absoosally in his affidavit denies the version given by thepetitioner and states that he only advised him to vote with tfieGovernment against the motion of no-confidence.
The above explanations have been tendered for the first time inaffidavits of the petitioners tendered to this Court. Further, at thecommencement of the arguments, learned President’s Counsel forthe petitioners informed us that had petitioner No. 1 been able toattend Parliament he would have voted with the Government; andthat had the petitioner No. 2 remained in Parliament he would havevoted with the Government under protest. This is also an explanationwhich the petitioners have not disclosed at any time prior to thepresent proceedings.
DI&IPLINARY PROCEEDINGS AGAINST PETITIONERSOn the evening of 03.12.91 after the delivery of the judgment inSC(Spl.) Nos. 4-11/91, the Disciplinary Committee of the UNP metand by its report (R8) recommended disciplinary action against thepetitioners in view of the following:-
they had signed the impeachment motion without priordiscussion within Party;
they then associated themselves at public meetings with theeight expelled MPs, which campaign was reported innewspapers without contradiction;
they then signed R1 and R2 withdrawing their signatures to theimpeachment motion, but thereafter applied for a free vote onthe no-confidence motion against the Speaker for rejecting theimpeachment motion;
such conduct shows that they had by signing R1 and R2,deceived the Government Parliamentary Group and the Party4and
they had failed to attend Parliament and to vote against the no-confrdence motion on 10.10.91 despite the rejection of theirrequest for a free vote, which lapse they had failed to explain upto that day.
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The Working Committee which met at 7.00 p.m. on the same dayconsidered the above report and the petitioners’ letters dated
and decided to request them to attend its meeting on
at 8.00 p.m. (see R8. Minutes of the Working Committeemeeting dated 03.12.91).
NOTICE TO PETITIONERSThe 2nd respondent by letters dated 03.12.91 (P8) dispatched byexpress post to their addresses in Colombo and in the outstationsinformed them that the Working Committee had considered theirletters dated 09.10.91 and decided to request them to be present ata meeting on 06.12.91 at 8.00 to discuss their conduct as membersof the Party as appearing from the said letters and that in the event oftheir failing to attend the Working Committee, it will proceed toconsider the matter in their absence.
EXPULSIONOn 06.12.91 the petitioners were absent when the WorkingCommittee met. The 2nd respondent informed the Committee that thepetitioners had been informed by express post to attend the meeting,in proof of which he had obtained certificates of posting (R6 and R7);thereupon the Committee proceeded ex parte and considered thedisciplinary committee report R8, letters dated 09.10.91 written bythe petitioners, R3, newspaper reports of public meetings held by theexpelled UNP members at which the petitioners were present and thedocuments R1 and R2. The Committee agreed that the conduct ofthe petitioners subsequent to the withdrawal of their signatures to theimpeachment motion was culpable; that it also indicated deceitfulconduct towards the Government Parliamentary Group and the Party;and as such the petitioners were not entitled to immunity fromdisciplinary action accorded to members in consideration for signingR1 and R2. The Committee resolved to expel the petitioners from/nembership of the Party (see the proceedings of the WorkingCommittee marked R10).
The decision of the Working Committee was communicated to thepetitioners on 09.12.91 by registered post to their addresses in theoutstations and in Colombo. The letter of expulsion (P1) is as follows:-
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"Dear Sir,
EXPULSION FROM MEMBERSHIP OF THE UNITED NATIONALPARTYI write with reference to my letter to you dated 3rd December 1991,sent by express post… requesting you to be present at a meeting ofthe Working Committee of the Party fixed for 6th December 1991. Youhowever, did not present yourself.
I hereby notify you that the Working Committee decided to expelyou from membership of the United National Party with effect from 6thDecember 1991, for the following reasons:-
That you were, on your admission, a signatory to the Notice ofResolution under Article 38(2) of the Constitution of theDemocratic Socialist Republic of Sri Lanka, to impeach HisExcellency The President, The Leader of the Party.Notwithstanding that you were signatory to the letter dated 30thAugust 1991, addressed to the Speaker by members of theGovernment Parliamentary Group of 2nd September 1991, youpersisted in maintaining your support of the said Notice ofResolution.
Your conduct in continuing to support the said Notice ofResolution subsequent to your signing the aforesaid letter dated30th August 1991 and the said Resolution of 2nd September1991 and your letter dated 9th October 1991 written to theChief Government Whip, establishes deceitful action on yourpart towards the Party and the Government ParliamentaryGroup.
That whilst being a member of the Party you have associatedyourself with the public campaign carried on by the 8 formefmembers of the Party who were expelled from the Party on 6thSeptember 1991, at which the Party Policies and Leadershipand more particularly the Executive Presidential System havebeen criticized.
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That your aforesaid acts set out at (1) and (3) above werecommitted without prior consultation with or discussion withinthe Party Organisation.
That despite your request for free vote on the Motion of No-confidence against the Speaker being refused by theGovernment Parliamentary Group, you were not present inParliament on 10th October 1991 to vote with the Governmentbenches against the said Motion, and you have up to 6thDecember 1991 not tendered any reason or excuse for yourbreach.
You have by your aforesaid acts violated Section 3(a), (b), (d);Section 9(d), (e), (f), (g) and Section 17(1), (2), (3), (6) of theParty Constitution.
Yours faithfully,
Sgd. 6. Sirisena CoorayGeneral SecretaryUnited National Party"
PROTEST BY PETITIONERS AGAINST PROCEEDINGS OFAND SUBSEQUENT PROCEEDINGS BY THE WORKINGCOMMITTEEAlthough the Working Committee inquired into the matter ex parteon 06.12.91 in the belief that the petitioners were in default ofappearance, the petitioners state that the letters summoning them forthe meeting had been received by them at the outstation addressonly on 09.12.91 (a fact which the Counsel for the respondents wasprepared to accept for the purpose of these proceedings). Thepetitioners state the letters addressed to their Colombo addressesh£d not been received at all; and by their letters dated 9th and 12thDecember 1991 respectively, the two petitioners protested to the 2ndrespondent informing that they could not attend the WorkingCommittee meeting for want of notice. The letter of expulsion wasreceived by each of them on 10.12.91.
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The 2nd respondent wrote to the petitioners on 21.12.91, In hisletter (P11) he maintained that the letters dated 03.12.91 had beensent by express post. Without prejudice to that position, he informedthat if the petitioners wished to do so, they may forward writtenobservations stating their position regarding items 1-6 in P1 to enablethe Working Committee to decide whether it would rescind, vary orconfirm its decision of 06.12.91.
The petitioners replied on 26.12.91(P12). Each of them said -“Answering the allegations contained in your letter of the 9th instant Iwish to state as follows:-
At the outset I would like to place on record my objections to theholding of a disciplinary inquiry against me by the WorkingCommittee of the Party, as it is a body which is personallyselected and appointed by the Party alone, and under the partyConstitution has no right, authority or power to conduct anydisciplinary proceedings against a member of the Party and/or toexpel such member. Under the Constitution of the Party, it is theNational Executive Committee which is vested with such right,authority or power. Further, neither the National Convention of theParty nor the National Executive Committee has the power todelegate its functions relating to disciplinary control of membersof the Party.
No disciplinary action can be taken against me by the Party onthe alleged ground that I had signed the motion of resolutionsubmitted to the Speaker under Article 38(2) of the Constitution,to impeach His Excellency, The President of Sri Lanka, who isalso the Leader of the Party, by reason of the fact that thedecision taken and/or the act done by me in signing the motion ofresolution was pursuant to a right, power or authority conferredon me as a Member of Parliament under the aforesaid Article efthe Constitution, which cannot be reviewed or controlled by theParty and/or any of its Committees. No rule, convention orprinciple of the Party can override the constitutional right, duty orresponsibility conferred on me by the Constitution of the country
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which I, as a Member of Parliament, have sworn to defend and
uphold.
3# I deny having indulged in any deceitful action against the Partyand the Government Parliamentary Group.
l deny the allegation contained in paragraph 3 of your letter,
In view of the foregoing, the allegation contained in paragraph 4does arise.
My absence from Parliament of 10th October 1991, is not aviolation of Party discipline.
I deny that I have violated any provisions of the PartyConstitution.
I urge that a proper and lawful inquiry be held to inquire intoallegations contained in your letter, at which I propose to adducefurther evidence to refute the allegations contained therein".
The observations of the petitioners were considered by theWorking Committee on 30.12.91 the minutes of which meeting havebeen marked R11. The 2nd respondent told the Working Committeethat the petitioners had been called upon to forward writtenobservations in view of the constitutional time limit for challengingtheir expulsion. The Working Committee was of the view that in thelight of the relevant documents and the uncontradicted newspaperreports, the petitioners had not adduced sufficient facts or reasons tojustify reconsideration or alteration of its decision on 06.12.91. TheCommittee also noted that the answer of the petitioners was inseveral respects contrary to the ruling given by the Supreme Court.The Committee declined the request for an oral hearing for thereason that the petitioners had requested for a hearing by the NEC,tyhich request could not be accepted; and that in any event theavailable material did not call for further inquiry or hearing.
Accordingly, the 2nd respondent by letter dated 30.12.91(P13)
• communicated to the petitioners the Working Committee ruling that
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their written observations did not disclose any valid reason to alterthe decision made on 06.12.91.
GROUNDS OF EXPULSIONThe precise grounds of expulsion as may be gathered from theletter P1 areas follows:
resumption of support for the impeachment motion which thepetitioners had previously disowned by retracting their signaturesthereto when they signed R1 and R2;
in signing R1 and R2*the petitioners did in fact deceive the Partyand the Government Parliamentary Group to the belief that theywere giving up activities which are contrary to the PartyConstitution. This allegation is inferred from the conduct of thepetitioners in writing the letter R3 in which they expressed theirwish to vote in favour of the No-confidence Motion against theSpeaker, and applied for a free vote for that purpose after theSpeaker had rejected the impeachment motion at the request of116 MPs, including the petitioners themselves:
associating with the public campaign conducted by the UNPMPs at which Party Policies and Leadership and the ExecutivePresidential System were criticised.
engaging in the acts set out at 1 and 2 above without priordiscussion within the Party Organisation;
failure to vote in Parliament with the Government Benches on
without any excuse therefor after their request for a freevote had been rejected by the Government Parliamentary Group;and
by such conduct they violated provisions of the UNP Constitution*which are more fully set out in P1.
It is my view that a member of the UNP is liable to disciplinaryaction by the Party only if it can be established that he has either
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expressly or by necessary implication violated his contractualobligations to the Party and not otherwise. In other words the Partycf&nnot establish heads of misconduct against members at its whimand fancy, independently of their contractual obligations under theParty Constitution. Such obligations may be express or implicit. It ispresumably for this reason that para 6 of P1 invokes the provisions ofthe Party Constitution for the expulsion of the petitioners for conductspecified in items 1-5 thereof.
THE UNP CONSTITUTIONThe following provisions of the UNP Constitution (P2) are relevant: –
Rule3
In accepting membership of the Party a personagrees –
to accept the Principles, Policy, Programme andCode of Conduct of the Party;
to conform to the Constitution and Standing Orders of
the Party;
(d) not to take part in political or other activities whichconflict or might conflict with the above undertakingsand not to bring the Party into disrepute.
Office-bearers; line of authority
Rule 7(1)- The President of the country, if he is a member of the
Party, shall be the Leader of the Party.
7(3)- Members of the Parliamentary Party shall be bound
by orders and directions of the Leader and in hisabsence the Leader of the Parliamentary Party as tothe conduct of matters in Parliament.
Parliamentary Elections; obligations of Party candidates and MPs
Rule 9(d) – A candidate shall be called upon to give a pledgethat if he succeeds in entering Parliament on theParty Ticket he will conform to the Principles, Policy,Programme and Code of Conduct of the Party andthat he will abide by the Standing Orders and the
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Constitution of the Party and that he will carry out theMandate of the Party; if he fails to do so, theExecutive Committee shall take action for tflepunishment of such offender.
9(g)- Any candidate who after election fails to act in
harmony with the Principles, Policy, Programme,Rules and Code of Conduct and Standing Orders ofthe Party shall be considered to have violated theConstitution.
Standing Orders of the Parliamentary Party
17(1) – Every member of the Parliamentary Party shallsubscribe to a pledge of loyalty to the Party.
– He shall vote in Parliament according to the Mandate
of the Parliamentary Party conveyed through theWhip of the Party.
– If any member has any conscientious scruples on
any matter of Party Policy he may be free to abstainfrom voting, subject to the written approval of theLeader of the Parliamentary Party.
– In the case of Private Members Bill or motions which
do not raise any question of Party Policy or financialimplications or on which the Government or theNational Executive Committee has come to nodecision, members shall be allowed an entirely freehand.
(6) – Members should take the fullest advantage of theopportunity at the Party meetings of raisingquestions of Party Policy concerning which they havedoubts.
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GROUNDS URGED AGAINST THE EXPULSIONTtie petitioners challenge the expulsion on the following grounds:-
Absence of jurisdiction in the Working Committee to takedisciplinary action against the petitioners.
(a) The actions for which the petitioners were expelled are
absolutely protected by the provisions of the Constitutionof Sri Lanka and Statute Law in terms of which thepetitioners were entitled to resort to such action.
Assuming the existence of limitations to their rights, thepetitioners have acted within their rights.
The Party was, by reason of public representations madein the matter, estopped from taking disciplinary actionagainst the petitioners.
In any event, expulsion is arbitrary and excessive.
Breach of the rules of natural justice.
ABSENCE OF JURISDICTION IN THE WORKING COMMITTEE•
These petitioners have raised the same objection which wasraised in Gamini Dissanayake et al v. Kaleel01 viz. that the NEC aloneis competent to exercise disciplinary power and that it cannot vestsuch power in the Working Committee in terms of Rule 8(3) (m) of theUNP Constitution. I see ho reason to change the ruling of this Court inthat case that the NEC may vest such power in the WorkingCommittee. Learned President’s Counsel for the petitioners did notpress this objection except that in passing he submitted thatdisciplinary action against the petitioners for alleged violation of Rule$ (d) may be taken by the NEC alone since that body is by namereferred to in that rule as being the authority empowered to punishsuch offender.
Rule 9(d) requires a MP to honour the pledge given to the Party ascandidate, that if he succeeds in entering Parliament on the Party
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Ticket he will conform to the Principles etc. of the Party and carry outthe Mandate of the Party. I do not think that the reference in this ruleto the NEC is intended to preclude disciplinary action by the WorkingCommittee for its breach where the NEC has vested its powers in theWorking Committee by an authority under Rule 8(3)(m). In any eventRule 9(d) is not vital to proceedings against the petitioners, for theobligations referred to therein, except the duty of a MP to carry outthe Mandate of the Party (which is not of much relevance in theinstant case), are covered by other rules (which make no specificreference to the NEC).
The petitioners, however, make the point that in any event, theresolution of the NEC dated 19.04.91(P15) for vesting its power in theWorking Committee has not been duly passed as it has been merelyproposed and seconded but not adopted. There is no expressstatement in P15 (the minutes of the NEC) that this resolution hasbeen adopted; however, the 2nd respondent in his counter affidavitstates that this was done; and further that at the meeting of the NECheld on 07.09.91 (the minutes of which are marked R13), the MinutesP15 were adopted, and the said powers were again vested in theWorking Committee. The 2nd respondent has also produced markedR21(a) – (e) copies of Minutes of other meetings of the NEC to showthat various resolutions had been adopted, and Minutes have beenmaintained, in the same manner and form as in P15. In thecircumstances, the absence of an express statement in P15 that theresolution in question was adopted does not compel me to concludethat it has not been duly passed. I hold that the resolution referred toin P15 has been duly passed and that the Working Committee hasjurisdiction to take disciplinary proceedings against the petitioners.
VALIDITY OF THE GROUNDS OF EXPULSIONPROTECTION CLAIMED IN TERMS OF CONSTITUTIONAL ANDSTATUTORY RIGHTSAs in SC (spl.) 4-11/91 (supra) here too the petitioners invokeArticle 38 of the Constitution and Section 3 of the Parliament (Powersand Privileges) Act (Cap. 383) as absolute protection of their conductin relation to the impeachment motion, whether in signing it or in
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persisting with their support for it, subsequent to R1 and R2, Theyinvoke Article 4(a) and (e) read with Article 93 and Articles 10 andW(1) (a) as protecting their conduct in associating with the politicalcampaign carried on by the 8 expelled UNP MPs. They contend thatthe grounds of expulsion based on such conduct derogatesovereignty, their freedom of thought, conscience, speech andexpression and their privileges as Members of Parliament assured bythe aforesaid constitutional and stattiory provisions; that their actionswere directed to the promotion of one of the objectives contained inthe UNP Constitution, namely the promotion of the political educationof the people and their political, social and economic emancipationand the recognition of the fundamental rights of the people; that evenif their actions contravene party discipline the rules, conventions orprinciples of the Party cannot override their constitutional andstatutory rights; and as such their expulsion on the impugnedgrounds is invalid.
RIGHTS UNDER ARTICLE 38 OF THE CONSTITUTIONIn my judgment in SC (Spl.) No. 4-11/91 (1) (supra) where theabove issues clearly arose for decision, I have upheld the right ofMPs to take proceedings under Article 38 of the Constitution or toagitate matters in public but after first raising the issues within theParty. In the instant case the said right is not directly in issue for thepetitioners have been dealt with not for signing the impeachmentmotion but for persisting in maintaining their support of the saidmotion after retracting their signatures thereto. This in my view ismuch more a matter of Party discipline than it was in the previouscase. Even the act of their signing the impeachment motion does notsavour of the exercise of a constitutional right. Thus the petitionerNo.1 had signed it even without seeing it. He is a holder of aBachelor of Arts Degree and an Attorney-at-Law. If he signed itwithout knowing its contents '(which he says is the practice inParliament adopted by some MPs when they sign importantdocuments), it is quite probable that the petitioner No. 2 (who doesnot possess such academic or professional qualifications) himselfsigned the impeachment motion without knowing its contents. Suchconduct does not constitute the exercise of constitutional rightsunder Article 38.
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Thereafter both petitioners subscribed R1and R2 withdrawingtheir signatures and consent to the impeachment motion and calledupon the Speaker to reject it; and when the Speaker acceded to theirrequest, they became aggrieved and wished to support the No-confidence Motion moved by the Opposition for challenging theSpeaker's ruling. We were also told by the learned President’sCounsel that had the petitioner voted against the No-confidenceMotion and the petitioner No®2 would also voted against it. butsubject to protest.
The 8 MPs who were expelled on 06.09.91 were consistent, eventhough they violated their obligations to the Party. These petitionerswere inconsistent. They were either unable to make up their mindsdue to some weakness or were deliberately changing their viewsevery moment for reasons best known to themselves. Such conductwould make it impossible to maintain Party cohesion which is vital tothe proper working of the Parliamentary System of Governmentestablished under our Constitution. It is violative of the obligation ofMPs under Rule 9(g) of the UNP Constitution to harmonize with thePolicy and Code of Conduct of the Party and the pledge of loyalty tothe Party which they have subscribed in terms of Standing Order17(1).
RIGHT TO FREEDOM OF SPEECHAs regards the petitioners claim based on the right to freedom ofspeech, it is well settled that this is a valuable right which cannot berestricted or inhibited merely because comment may be inconvenientor embarrassing to particular persons wielding State power or theGovernment itself. Criticism may be strongly worded; and it has beensaid that this right "includes the freedom to speak foolishly andwithout moderation" Joseph Perera v. Attorney -Generalm. However,this right is subject firstly, to restrictions which may be imposed bylaw and permitted by Article 15 of Constitution e g. in relation to*contempt of Court, defamation or incitement to an offence; secondlythere are certain limitations which are inherent in the exercise of theright e.g. having regard to the occasion for such exercise, the subjectmatter of comment and the obligations of the person exercising theright. Thus a student is bound by reasonable rules governing
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conduct and in that context has the right to peacefully express hisviews in the appropriate manner. Dissanayake v.9fi Jayewardenepura University l'5). Similarly, public officers andJudges are subject to certain necessary constraints essential to thedue performance of their official functions. As was held in SC (Spl.)Nos. 4-11/91 (supra), by analogy, the freedom of speech in publicwhich a MP is entitled to is constrained by the requirements of Partydiscipline.
To what extent is the freedom of speech of a MP constrained bythe requirements of Party discipline? No precise answer to thisquestion is possible for each case has to be determined on its ownfacts and circumstances. However, some general observations areappropriate. Thus, it must be borne in mind that in the political arenaone cannot demand the same degree of peacefulness as is requiredin educational institutions or in the public service. Further, as in thecase of others who enjoy the right, criticism made by the MPs neednot meet common standards of acceptability (see generally on theprinciple, Austin v, Keefe <l6)).
Criticism or even condemnation of policies or ideas within a Partyare legitimate even if it were to weaken the Party's position in thecountry, for the time being. In appropriate circumstances, evenpublic criticism of Party Policies or personalities may becomereasonable. However, I am unable to subscribe to a doctrine whichwould permit a group of dissidents, who seek to secure effectivecontrol of the Party on account of irreconcilable differences with theParty Leadership, to conduct a campaign calculated to destroy theParty and yet retain their status as MPs belonging to such Party inParliament. The situation becomes worse when they establish a newParty in aid of such campaign and seek to attract the less importantmembers of the main Party to join the new Party. Our Constitutiondoes not permit a Party within a Party whether in the Government orin the Opposition. If that is legitimate, anarchy would be the result;and the public would suffer by it. A MP who uses his right to freedomof speech to create such a situation, whether as leader or assupporter, violates his Party obligations and exceeds the bounds ofsuch freedom; he thereby forfeits the protection of Article 14(1) (a) ofthe Constitution.
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is the conduct of the petitioners in associating with the publiccampaign carried or by the expelled UNP MPs legitimate exercise oftheir right of freedom of speech? From the letter P4 addressed by tiepetitioner No. 1 and from press interview given by petitioner No. 2, itwould appear that they were unhappy with the Party on account ofthe reduction of certain privileges they had previously enjoyed e.g.giving directions to Ministry officials to expedite work on projects,initiating acquisition of lands, wielding authority over officials incharge of social service programmes, issuing letters to votersrecommending them for employment. Their opinion that there was afailure of democracy was partly due to this elimination of politicalinfluence in the administration. The petitioner No. 1 was also unhappywith the conduct of the President in failing to explain to the MPs therumours, gossip and newspaper stories that followed theimpeachment motion which he signed. He then retracted hissignature and resigned his Ministerial Office to become a ‘free’ UNPMP. A few days thereafter he joined the “rebels" and was billed toaddress their rallies in four districts on the subject of theimpeachment motion. At the Kalutara meeting, he insinuated thatPresident (the Leader of the UNP) is a devil who had to be driven outof the Party. On 09.12.91 he told the press that he would notchallenge his expulsion as he knew what the judgment would be: thatinstead, he would join the DUNF and that the petitioner No. 2 woulddo likewise.
The petitioner No. 2 joined the “rebels" at a public rally in Kandy.He was garlanded and was carried to the stage amidst the firing ofcrackers. In his speech he blamed the Executive Presidential systemfor the reduction of the powers of MPs, reaffirmed his signature to theimpeachment motion and falsely denied his signature to R2. Herepeated his denial at a media conference held at the residence ofMr. Lalith Athulathmudali.
The petitioners who appear to have been inhibited againstdiscussion within the Party issues relating to the conduct of thePresident and the Executive Presidential System expressed theirgrievances in public. That by itself may not have been a good groundfor expulsion; but they went beyond and made a public display ofParty indiscipline in the course of which one of them joined in
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ridiculing the leader of his Party; he also cast aspersions on theimpartiality of Courts. The other petitioner lied to the Public and themedia denying his signature to R2, thereby giving credence toallegations made by other dissident MPs that certain GovernmentMPs had forged some of the signatures in R2. The learned Counselfor the petitioners cautioned us against making pronouncements onpolitical culture and appealed to us to make some allowance forsome of the utterances made by the petitioner due to possible stressduring this period. I am prepared to accept his caution and confinemyself to the exercise of our constitutional jurisdiction. However, Icannot refrain from examining the speeches made by the petitioners;and after making every allowance I can, I am convinced that theirspeeches are not made in the legitimate exercise of their right tofreedom of speech. They are, therefore, not entitled to the protectionof Article 14(1) (a) of the Constitution.
FREEDOM OF THOUGHT AND CONSCIENCEThe above conduct of the petitioners cannot be described as anexercise of their right to freedom of thought and conscienceguaranteed by Article 10 of the Constitution. The inconsistency oftheir actions and the vacillation of mind is imponderable;consequently the beliefs and doctrines they entertain areunascertainable. Even if the original 8 dissidents had some thoughtsand views regarding the governance of the country which theyvehemently advocated in the heat of their defection from the Partyand in furtherance of their campaign against Party Leadership,though in derogation of their obligations to the Party, these petitionershave no clear views except as regards the deprivation of theirpowers’ as MPs. What is clear beyond doubt is that they had fromSeptember 1991 repudiated the Party and collaborated with thedissidents in the establishment of the DUNF in violation of theirobligations to the Party. In the circumstances, no question ofprotection under Article 10 arises and their conduct constitutes ayalid ground for taking disciplinary proceedings against them.
SOVEREIGNTY ARTICLES 4(a) & (e) & 93 OF THE CONSTITUTIONLearned President’s Counsel for the petitioners submitted that theabove provisions are not altogether meaningless in determining the
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rights of MPs, that Party cohesion does not require them to be totallysilent and that their continued support of the impeachment motionwas an exercise of the rights of the petitioners as electedrepresentatives of the people. He relied on my judgment in Sc (Spl.)4-11/91 (supra) where I held that although a MP is bound by hisobligations to the Party, he is not a lifeless cog liable to be subject tounlawful or capricious orders or directions touching his rights QuaMP. The learned President's Counsel added that by writing the letterR3 (which is alleged to be evidence of deceptive conduct) thepetitioners have acted within the Party and that their expulsion isbased on allegations which might have been resolved at a properinquiry. I shall presently consider R3 and the adequacy of the inquiryheld against the petitioners. Suffice it to state at this stage that in viewof their conduct, the petitioners are not entitled to complain ofinterference with their rights by lawful orders or directions.
ESTOPPELThe petitioners state that in any event, inasmuch as they had beensignatories to R1 and R2 and the Party had publicly declared that nodisciplinary action would be taken against any MPs who weresignatories to the said document, the Party was estopped from takingdisciplinary action and hence their expulsion from the membership ofthe Party was bad in law. In support, they rely on the statementsmade by the President and were published in newspapers on 19thand 20th September 1991 and the press interview given by the 2ndrespondent which was published in the newspapers on 15.12.91. Thepetitioners also rely on the fact that on 04.11.91 the WorkingCommittee decided not to take disciplinary action against Dr. CyrilMP and Ravindra Samaraweera MP despite the fact that the formerassociated himself with the public campaign carried on by thedissidents in October 1991 and the latter failed to attend Parliamentand to vote with the Government against the No-confidence Motionagainst the Speaker, on 10.10.91.
Halsbury 4th Ed. Vol. 16 para 1514 on 'promissory estoppefstates:-
“When one party has, by his words or conduct, made to the othera clear and unequivocal promise or assurance which was intended to
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affect the legal relations between them to be acted on accordingly,then, once the other Party had taken him at his word and acted on it,the one who gives the promise or assurance cannot afterwards beallowed to revert to their previous legal relations as if no suchpromise or assurance had been made by him. but must accept theirlegal relations subject to the qualification which he himself has sointroduced".
The author observes that this doctrine is derived from a principleof equity enunciated in 1877 and adds –
"The doctrine cannot create any new cause of action where noneexisted before, and it is subject to the qualification (1) that the otherParty has altered his position; (2) that the promisor can resile from hispromise on giving reasonable notice which need not be a formalnotice, giving the promisee a reasonable opportunity of resuming hisposition; (3) the promise only becomes final and irrevocable if thepromisee cannot resume his position".
In his statements, the President announced that no disciplinaryaction will be taken against MPs who having admitted their signaturesto the impeachment motion, retracted their signatures thereto andinformed the Speaker that they were withdrawing their signatures, iftheir signatures appeared on the motion, The 2nd respondent told thepress –
“They (the MPs) have promised to abide by Party discipline andwe trust them. They won't be victimised”.
It is to be noted that in R2, 116 MPs including the petitioners madetheir request to the Speaker in the following terms:-
“The Government Parliamentary Group accordingly calls upon theHon. Speaker to take cognisance of this Resolution of theGovernment Parliamentary Group and reject the illegal,unconstitutional and malicious move to remove the President fromOffice”.
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There is an admission in R2 that the impeachment motion wasmalicious. If so, by disowning it the petitioners, inter alia, madeamends for their misconduct and thereby acknowledged theircommitment to the Party. By such act they obtained exemption frcfnbeing dealt with for violating the Party Constitution by reason of theirmisconduct in signing the motion, without first raising the issueswithin the Party. They promised to abide by Party discipline. Therewas no promise by the Party to refrain from taking disciplinary actionagainst them for future misconduct. What happened next was thatfrom about 20.09.91 they rejoined the dissidents in carrying on theirpublic campaign with reference to the impeachment motion and theexecutive Presidential System and finally, by writing R3, dishonoredtheir undertaking in R2 and showed beyond doubt that they hadresumed their misconduct. Quite plainly they are liable to disciplinaryaction for such misconduct.
Promissory estoppel has no application to the above facts. Herethere is no promise affecting legal relations between the parties; thepetitioners committed misconduct, made amends and gave apromise as to their future conduct; there was no legal or other fetterwhich precluded them from honouring that promise. The Party did notcontract with the petitioners to confer on them the privilege ofpersisting with their misconduct without sanction. As such, thesubmission of the petitioners based on estoppel is without merit.
Dr. Cyril and Ravindra Samaraweera were also guilty of persistentmisconduct but each of them gave a written undertaking not toengage in activities contrary to Party Policies and Principles andreaffirmed their loyalty to the Party and Leadership, whereupon theWorking Committee decided not to take disciplinary action againstthem for their recent dereliction. At the time of the said decision, therewas every indication that the petitioners had decided to join theDUNF. There was also no evidence of any desire on their part toreconcile with the Party. Logically, therefore the Working Committeemight have taken disciplinary action against them; but they decidedto await the decision of this Court in the pending cases filed by the 8expelled UNP members. In the circumstances, the petitioners werenot entitled to the same treatment as the other two MPs and hence
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the decision to consider disciplinary action against the petitioners ata future date cannot be faulted.
COMPLAINT THAT EXPULSION IS EXCESSIVEThe petitioners also complain that the sanction of expulsionimposed on them is, arbitrary, excessive and totally disproportionateto any conduct on their part. In support, the learned President’sCounsel for the petitioners strenuously attacked the 2nd and 5thallegations levelled against the petitioners, namely, the allegeddeception of the Party and the Government Parliamentary Groupwhen they signed R1 and R2 (as disclosed by their letter R3) andtheir failure to attend Parliament and to vote against the No-confidence Motion on the Speaker on 10.10.91, in accordance withthe decision of the Group made on 09.09.91.
CHARGE OF DECEPTIONLearned President's Counsel submitted that the petitioners signedR1 and R2 for maintaining Party cohesion; nevertheless the petitionerNo. 1 was genuinely unhappy and hence addressed P4 to Hon. RanilWickremasighe, the Leader of the House. Thereafter, both petitionersaddressed R3 to the Chief Government Whip applying for a free voteon the No-confidence Motion on the Speaker. Both P4 and R3 wereinternal communications which cannot be used as a basis forexpulsion; and that R3. even if it is interpreted as a withdrawal of thepetitioners' signatures to R1 and R2 cannot justify the allegation ofdeception. The learned President's Counsel argued that the fact ofsigning R1 and R2, did not deprive the petitioners the right toquestion the procedure followed by the Speaker in rejecting theimpeachment motion and hence they were justified in applying for afree vote.
In R3 the petitioners expressed their desire to vote in favour of theTjo-confidence Motion and applied for a free vote to enable them tovote according to their conscience. However, Standing Order 17(4) ofthe Party Constitution precludes the grant of a free vote inter alia, inthe case of a motion which raises any questions of Party Policy. Ithink that the No-confidence Motion raised questions of Party Policy.
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It is true that at the time of writing R3 the Government had made nodecision in the matter and it was on the evening of 09.10.91 that theGovernment Parliamentary Group decided to vote against jt.However, having regard to the background to the controversy and thefact that the said motion was moved by the Opposition, the irresistibleinference is that all along, it must have been the Party Policy (knownto every MP including the petitioners) to vote against the Motion; if so,the petitioners were not eligible for a free vote. At best they wereeligible in terms of Standing Order 17(3) to apply for permission toabstain from voting on the ground of "conscientious scruples".
However, the petitioners had decided to vote in favour of the No-confidence Motion, hence the request for a free vote. What is thereasonable interpretation that may be placed on that request in thelight of the facts known to the petitioners and the Party? Was it agenuine expression of their desire to vote according to theirconscience, as claimed by them; or was it an implied repudiation oftheir representations in R1 and R2 which the petitioners neverseriously intended to honour, when they signed those documents? Ifit was the latter, then the charge of deception becomes plausible.This question has to be decided in the light of the background factswhich are discussed below.
The petitioners had signed the impeachment motion without priordiscussion of the issue within the Party and thereafter disownedthe motion.
Thereafter they joined the dissidents in their public campaign.Petitioner No. 2 joined it on or about 20.09.91. The petitionerNo. 1 also joined it and was also billed to speak at public ralliesin Kegalle, Badulla, Galle and Kalutara between 27th Septemberand 07th October, 1991. During the campaign, the petitionerNo. 2 denied his signature to R2 which shows that his intentionsin signing that document had not been genuine.
Both of them gave considerable support to the dissidents inmounting a sustained campaign against the Party and itsLeadership while the decision of the Speaker on theimpeachment motion was pending. At a rally held in Kalutara on
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07.10.91 the petitioner No. 1 referred to the Party Leadership indisparaging terms. The Speaker rejected the impeachmentmotion on the 8th and on the next day both the petitionersapplied for a free vote as they wished to support the No-confidence Motion against the Speaker. There is no evidence ofany other Government MP making such an application, whichindicates, that these two petitioners who had decided to persistin their support of the impeachment motion remained loyalsupporters of the dissidents as on 09.10.91.
Subsequent events confirm that these petitioners were indeedloyal supporters of the dissidents. Thus on 09.12.91 petitionerNo. 1 announced that both he and petitioner No. 2 had decidedto join the DUNF. On 21.01.92 they along with the 8 expelled UNPMPs publicly celebrated the recognition of the DUNF by theCommissioner of Elections.
In the light of the above facts and circumstances, it would be quitereasonable to infer that even at the time of signing R1 and R2, thepetitioners were loyal to the dissidents and that they signed thesedocuments as a colourable devise to avoid disciplinary action whichmight have led to the loss of their Party Membership and their statusas MPs; and that the representations contained in R2 were notseriously intended to be honoured. I therefore hold that the charge ofdeception is established.
FAILURE TO ATTEND PARLIAMENT AND TO VOTE WITH THEGOVERNMENT ON THE NO-CONFIDENCE MOTION AGAINSTTHE SPEAKER
The explanation given by the petitioner No. 1 is that he had been aheart patient for some time and was ill on 10.10.91; and that heattended the Cardiology Unit of the General Hospital and obtainedtreatment. He also consulted a private doctor who advised rest. Thepetitioner states that on 10.10.91 he communicated his illness to theSecretary to the Chief Government Whip. The petitioner No. 2 saysthat he kept off from Parliament because Mr. Aboosally MP told himthat if he could not vote with the Government he should not bepresent when the vote on the No-confidence Motion was to be taken;
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and that acting on this representation, he was absent in the Housewhen the vote was taken. He contends that the respondents werethereby estopped from taking disciplinary action against him on ttysground.
According to the affidavit of the Secretary to the Chief GovernmentWhip, which I accept, the petitioner No. 1 was not available either athis residence in Colombo or in the outstation when he tried to contacthim over the telephone to inform him that the GovernmentParliamentary Group had rejected his request for a free vote and haddirected him to vote against the No-confidence Motion. It is not thecase for the petitioner that he was ill on the 9th or that he wasunaware of the group meetings. If so, he should have attended thatmeeting or at least made inquiries as to what decision had beentaken on his request. He did neither. He does not state the time atwhich he informed the Secretary to the Chief Government Whip hewas ill on the 10th. He was not hospitalised that day. He collected hisdrugs and went away after consulting a private doctor. If as hisCounsel informed us, he had contacted the Secretary to the ChiefGovernment Whip over the telephone, he did not confirm it in writing;nor did he produce the medical certificate (P7) (which he hadobtained on 10.10.91) either to the Chief Government Whip or to theWorking Committee. In P7 the doctor records the history of pain in thechest given by the petitioner and recommends rest for a few days.
Learned President’s Counsel for the petitioners informed us that ifthe petitioner No. 1 was able to attend Parliament on 10.10.91, hewould have voted with the Government since his request for a freevote had been refused. If he was that keen and was precluded byillness from attending Parliament, he ought ordinarily to haveconfirmed that fact in writing. His failure to do so and his otherconduct during this period show that he was firmly with the dissidentsand hence did not wish to vote with the Government. He probablyknew that had he attended Parliament, he had no choice but to votetwith the Government and that his request for a free vote will not beallowed. So he decided to absent himself from Parliament under thecover of illness. The fact that he was not available on the telephoneduring the night of the 9th shows that he had made his decision onthe 9th itself and was evading the Chief Government Whip. I do not
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believe the petitioner's statement that on 10.10.91 he communicatedhis illness to the Secretary to the Chief Government Whip, I accepttf^ Secretary's statement that the petitioner did not at any stagecommunicate his inability to attend Parliament.
Learned President's Counsel for the petitioners informed us thatafter the request of the petitioner No. 2 for a free vote was refused hedecided to vote with the Government subject to protest but Mr.Aboosally made a representation which gave him the option toabsent himself at the voting time. Mr. Aboosally admits speaking tothe petitioner but states that he only advised the petitioner to votewith the Government. The petitioner No. 2 states that he was told thatjf he cannot vote with the Government he should not be present atthe voting time. It is my understanding that on the basis of eitherversion, the petitioner had been advised to vote with the Government.Assuming that Mr. Aboosally used the words attributed to him, I amunable to interpret them as giving this petitioner the option ofabsenting himself at the voting time. In any event, whatever was toldto him, it was his duty to have remained in the House and to havevoted with the Government in accordance with the decision of theGovernment Parliamentary Group which had been communicated tohim in writing. Instead, he left the House because, as the evidenceshows, he was even more committed to the cause of the dissidentsand hence did not wish to vote with the Government. The explanationthat he left the House at the instance of Mr. Aboosally is anafterthought. He failed to disclose it to the Working Committee whenhe made his observations on the charges against him. He has offeredthis explanation for the first time in this Court, which shows that it isnot genuine.
In the result, the allegation based on the petitioners’ failure toattend Parliament and to vote with the Government on 10.10.91 isestablished.
‘appropriateness of the expulsion of the petitioners
FROM PARTY MEMBERSHIPThe deception established against the petitioners constitutesconduct which brings the Party into disrepute violative of Rule 3(1)(d) of the UNP Constitution. Any political party having such members
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in its fold is likely to suffer loss of public confidence. The failure of thepetitioners to vote with the Government on 10.10.91 is violative ofRules 3 (1) (a) & (b), 7(3), 9(d), 9(g) and in particular, Standing Or<Jer17(2) of the UNP Constitution. Their conduct in associating with thepolitical campaign‘conducted by the dissidents is violative of rule3(1) (d) of the UNP Constitution.
It is evident that the petitioners have committed very serious actsof Party indiscipline. I do not think that the respondents have acted inan arbitrary manner in taking disciplinary proceedings against them.On the other hand they appear to have acted with considerablerestraint in handling a serious crisis in the Party. In September, theyexpelled 8 members who spearheaded the campaign against th§Party and its Leadership. No disciplinary action was taken againstthe MPs who retracted their signatures to the abortive impeachmentmotion. Dr. Cyril and Ravindra Samaraweera who had committedcertain acts of indiscipline after they had signed R1 and R2 wereabsolved from disciplinary action in view of their undertaking tomaintain Party discipline and the loyalty to the Party and itsLeadership. These petitioners publicly repudiated the Party and wereirreconcilable. The respondents have decided to expel them from themembership of the Party which punishment is, in my view, notexcessive.
BREACH OF RULES OF NATURAL JUSTICEA good part of the arguments of learned Counsel before us was onthe question whether the disciplinary proceedings taken against thepetitioners conformed to the principles of natural justice and therequirements of a fair hearing. Learned President's Counsel for thepetitioners vehemently submitted that the rules of natural justice havenot been observed and that the procedure adopted by the WorkingCommittee was a mere pretence to comply with these rules; that theproceedings against the petitioners had been rushed through withouta proper charge sheet; and that the petitioners were expelled by aprocedure which is manifestly unfair, particularly for the reason thatthey have been denied an oral hearing which they had demanded.
Learned President’s Counsel for the respondents replying at lengthsubmitted that the impugned disciplinary proceedings are in
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substantial compliance with the rules of natural justice; that noprejudice has been caused to the petitioners; and that upon aconsideration of the totality of the facts and circumstances of thecase, the procedure adopted by the Working Committee was fair. Heclarified that urgency is not a ground relied upon by the respondentsfor justifying the impugned expulsion. He submitted that thecurtailment of the inquiry against the petitioners was an inevitablenarrowing of the content of natural justice in the case and attributableto the conduct of the petitioners.
It is a matter of some regret to this Court that the respondents haveleft room for complaint on so important a question as the one relatingto compliance with the rules of natural justice, t have thereforeendeavoured to closely follow every submission made on thisquestion by the learned President’s Counsel for the respondents andset down in great detail the relevant facts, the grounds of expulsionand the objections thereto. I have, in the previous part of thisjudgment, carefully analysed the said grounds and objections andmade my findings. One of the objects of that exercise was tounderstand the submissions of Counsel on this part of the case, inparticular, the submission that no prejudice has been caused to thepetitioners and that the procedure adopted by the WorkingCommittee was fair in all the circumstances.
‘AUDI ALTERAM PARTEM'Even though we are too familiar with the principles of naturaljustice and, therefore, the subject needs no detailed discussion, itwould be helpful to remind ourselves of the main requirements ofnatural justice. In Ridge v. Baldwin w at page 132 Lord Hudsonsummed up thus:-
“No one, I think, disputes that three features of natural justicestand out – (1) the right to be heard by an unbiassed tribunal;(2) the right to have notice of charges of misconduct; and (3)the right to be heard in answer to those charges".
In Fountaine v. Chesterton (unreported) cited in John v. Rees mMegarry J. referring to the above dicta of Lord Hudson said:-
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“I do not think I shall go far wrong if I regard … these threefeatures as constituting in all ordinary circumstances anirrefutable minimum of the requirements of natural justice …"
FAIR HEARINGSIn regard to requirements (2) and (3) above, there are certainprocedural safeguards which are recognised for ensuring fairhearings e g. the accused should be supplied with a fair statement ofthe charges (Stevenson v. United Road Transport Union)<s*. he shouldbe informed of the exact nature of the charge (Labouchere v. Earl ofWharneliffe)m, he should be given an opportunity of defending orpalliating his conduct (Fisher v. Keane)(,M. The opportunity should befair, adequate and sufficient. Thus the right to be heard will be illusoryunless there is time and opportunity for the case to be met – PaulJackson 'Natural Justice' p. 63. An Oral hearing is another valuablesafeguard which ought to be provided unless it may be dispensedwith having regard to the subject-matter, the rights involved and thenature of the inquiry. Wade ‘Administrative Law' 6th Ed. 543 states:-
“A 'hearing' will normally be an oral hearing. But in some casesit may suffice to give an opportunity to make representations inwriting, provided that any adverse material is disclosed andprovided, as always, that the demands of fairness aresubstantially met".
In R. v. Immigration Tribunal ex p. Mehmet|,9) the tribunal's decisionand the resulting deportation order were quashed for failure to affordan oral hearing. One need hardly emphasise the need for such ahearing in inquiries involving such extreme punishments as theexpulsion of a person from membership of a body. In the instant caseit also involves the consequential loss of membership of Parliament,
This would make an oral hearing imperative unless there are#overwhelming reasons for denying it.
SUBMISSIONS ON BEHALF OF THE PETITIONERSHaving regard to the above requirements, it cannot be denied thatthe procedure followed by the Working Committee suffers from
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apparent shortcomings. The Learned President’s Counsel for thepetitioners submitted that the petitioners had been denied the benefitqt almost every one of the recognised safeguards in that –
the letter P8 which required them to attend the WorkingCommittee meeting on 06.12.91 does not constitute a chargesheet; that the said letter merely invites them to attend themeeting to discuss their conduct as appearing in their letter R3;and that the said letter does not disclose the several allegationsreferred to in the report of the Disciplinary Committee (R8) andthe proceedings of the Working Committee (R9) pursuant towhich it was decided to summon the petitioners. Counsel for therespondents concedes that P8 cannot be regarded as a chargesheet.
P8 was received by the petitioners after 06.12.91 (conceded byCounsel for the respondents); and on 16.12.91 the WorkingCommittee made an ex parte order of expulsion against thepetitioners, acting on the basis of the recommendation of theDisciplinary Committee contained in R8.
Pf, the purported letter of expulsion dated 06.12.91 was the firstintimation of the charges against the petitioners (conceded byCounsel for the respondents); P1 itself cannot be regarded as aproper charge sheet in that (1) it does not contain adequateparticulars as regards the alleged association with the 8 expelledMPs; (2) the charge of deception is levelled purely on the basisof R3 (which is per se innocuous) and fails to mention all thosematters which had been considered by the disciplinarycommittee as per R8.
The letter P11 dated 21.12.91 calling for the written observationsof the petitioners on P1, by 27.12.91, did not allow sufficient timeto answer the allegations.
The Working Committee refused to allow the petitioners' requestfor an oral hearing basing its refusal on grounds which areuntenable e.g. (1) the constraint of the constitutional time limit forchallenging the expulsion; (2) difficulty created by the objectionto the jurisdiction of the Working Committee.
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Learned President’s Counsel for the petitioners submitted that theproper course would have been to suspend the expulsion and tohave held an oral inquiry at which the petitioners coutd have fqjlydefended themselves and that had this been done, the result maywell have been different; that in any event, the hearing held after theexpulsion was itself defective and invalid. Counsel relies on thefollowing passages in Wade ‘Administrative Law' 6th ed. 553:-
"What is an administrative authority to do if it has failed to give afair hearing, so that its decision is quashed or declared void? It stillhas the duty to give a proper hearing and decide the case, but it hasprejudiced itself by its defective decision, which it may well havedefended in legal proceedings. It cannot be fair procedure to take adecision first and hear the evidence afterwards, even though the firstdecision is legally a nullity. But usually the only possible course is forthe same authority to rehear the case. For that authority will be theonly authority with statutory power to proceed, and there is thereforea case of necessity of the kind we have already met. In the case of atribunal with variable membership the Court may order the hearing tobe held by a differently constituted tribunal.
It was acknowledged in Ridge v. Baldwin that, if there was noalternative, the original body would have to reconsider the case asbest as it could. Lord Reid said:-
… if an officer or body realises that it has acted hastily andreconsiders the whole matter afresh, after affording to theperson affected a proper opportunity to present his case, thenits latter decision will be valid.
But in that case the hearing, when given by the WatchCommittee, was defective in that the charges were not fullydisclosed, so that the second decision was as void as the first*.
Wade proceeds to cite Posluns v. Toronto Stock Exchange m where*the 2nd decision was held to be valid "since everything possible wasdone to hold a full and fair hearing on the second occasion”.
These are indeed formidable objections which, if not adequatelymet, would entitle the petitioners to relief. It would appear that after
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the decision in SC (Spl) Nos. 4-11/91 (supra) the Working Committeewished to finalise action against these petitioners as contemplated byita decision R20; then they made the ex parte order of expulsion P1 inthe bona fide belief that the petitioners were evading. However, P1was not valid for the reason that (1) it was not preceded by theservices of proper charges on the petitioners; and (2) the petitionershad no notice of the date of inquiry until after their expulsion. So thequestion for us is whether the subsequent proceedings by theWorking Committee are valid.
I am of the view that in the context of the background events andthe facts and circumstances considered earlier in this judgment P1serves as an adequate charge sheet. The petitioners were aware oftheir own conduct as fully committed collaborators in the movementagainst the Party and its Leadership. No doubt they had voted withthe Government in favour of the Appropriation Act. However, it is nota significant act of support. It was a step in their own interests in thathad the Government suffered defeat on the Appropriation Bill, it maywell have led to a dissolution of Parliament in which event thepetitioners would have ceased to be MPs. The petitioner No. 1 claimsto have supported the Government at some public functions inDivulapitiya; but he has not furnished any particulars to convince usthat he indeed supported the Government. On the other hand, theavailable evidence clearly shows that he was fully with the dissidents.In these circumstances, it would be idle to believe that the petitionerswere unable to understand the charges in P1. If they had anydifficulty, they did not complain of it in their reply P12.
As regards the complaint that the denial of an oral hearing wasunfair, I agree that the 2 grounds for that refusal referred to above areex facie not sufficient grounds for such refusal. Learned President’sCounsel for the petitioners submitted that the Working Committee,being prejudiced against the petitioners, never intended to hold aproper hearing on the charges levelled against them and hencerefused the request for an oral hearing.
Learned President’s Counsel for the respondents submitted thatthe answer of the petitioners to the charges did not justify an oralhearing in that –
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the answer was a bald statement of legal objections which are inconflict with the recent decision of this Court and a bare denial ofthe charges;
the petitioners did not complain of any vagueness in the charges;nor did they mention the excuses which they have since given fortheir failure to attend Parliament on 10.10.91. Had they done so.the Working Committee might have permitted an oral hearing;and
the objection to the jurisdiction of the Working Committee and thepaucity of the explanations in the answer narrowed the ambit ofthe inquiry for which the petitioners alone were responsible.
Learned President's Counsel argued that these petitioners had finallydefected from the Party and were in the process of joining the DUNF;that the facts did not warrant an inquiry; that there was nothing tomitigate; that their expulsion without an oral hearing did not in anyway prejudice them; and that in all the circumstances, theproceedings were fair.
Learned President's counsel for the respondents cited certaindecisions on the principles that Courts look to the substance ratherthan to the form of natural justice. These decisions are not on all fourswith the instant case. Two of them are decisions in appeals to thePrivy Council and the other is a decision of the Indian Supreme Courtin a writ matter. Nevertheless, the reference to dicta in these caseswould be of some assistance in determining the question before us.
In Sloan v. General Medical Council'm the Privy Council upheld anorder of the General Medical Council to remove the name of theappellant from the medical register notwithstanding the apparentvagueness of the charge. Their Lordships held that no prejudice hadbeen caused to the appellant by the form in which the charge was*framed and hence they were unable to say that the Committee didnot hold due inquiry into the facts. In Calvin v. Carr"3) The owner of ahorse was excluded from membership of the Australian Jockey Clubfor one year by an order of the Stewards. The owner’s appeal to theCommittee of the Club was dismissed, whereupon the owner sued
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Jayatillake and Another v. Katee! and Others (Kulatunga J.)
399
the Stewards and the Committee for a declaration that the decision ofthe Stewards was void for breach of the rules of natural justice and assych the Committee had no jurisdiction to make an order in appeal.The trial Judge held that the defects in the Steward's inquiry hadbeen cured by the proceedings before the Committee. In the appealto the Privy Council Their Lordships said –
‘The appellant’s case had received, overall, full and fairconsideration, and a decision, possibly a hard one, reachedagainst him. There is no basis on which the Court ought tointerfere, and his appeal must fail” (p. 452).
In Board of Mining Examination v. Ramjee12,1 the Court held that thecancellation of the certificate of a shot ftrer in a coal mine was notinvalid for non-compliance with a provision of the statute whichregulates the procedure for such cancellation. Krishna Iyer J.said-
“If fairness is shown by the decision-maker to the manproceeded against, the form, features and the fundamentals ofsuch essential processual propriety being conditioned by thefacts and circumstances of each situation, no breach of naturaljustice can be complained of (p. 969).
ASSESSMENT OF THE CASE AGAINST THE PETITIONERSI am of the view that the Working Committee had done everythingpossible to hold a full and fair hearing on the second occasion. Thepetitioners, however had defected from the Party and wereirreconcilable. They were not interested in answering the allegationsadequately and relied on mere jurisdictional grounds and bald•denials. The learned President’s Counsel for the petitioners told usthat the petitioners were not bound to disclose their material or todisclose the reasons for their failure to attend Parliament on 10.10.91.If so, the petitioners are themselves to blame for their predicament. Ihave taken this view in the light of the following considerations:-
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The rights of the petitioners to Party membership are contractual.At the time of their expulsion, they had repudiated the UNP andwere de facto members of the DUNF; and their expulsionconstituted nothing more than the severance of the formal linkbetween them and the Party. It follows that if they wished toremain in the Party they should have taken the initiative and co-operated with the Party by making a full and frank disclosure oftheir defence. If they failed to do so, they must take theconsequences.
In handling a crisis of the magnititude faced by the respondentsand in dealing with men of the petitioners' calibre, a politicalparty must be allowed a discretion to decide what sanctions areappropriate for violations of Party discipline; and if the Partydecides, bona fide, to expel any member guilty of repudiating theParty, as the petitioners have done, this Court will not in theexercise of its constitutional jurisdiction impose such member onthe Party. If that is done, Parliamentary Government based on thePolitical Party System will become unworkable.
I am satisfied that the disciplinary proceedings against the petitionerswere, in all the circumstances, fair.
The petitioners have also alleged that one of the members of theWorking Committee on 06.12.91 was Mr. M. D. A. Gunatilake MP whohad been named in the impeachment motion as a beneficiary ofPresidential favours; and that consequently the decision of theWorking Committee to expel the petitioners is vitiated by reason ofbias. However, the 2nd respondent states that Mr. Gunatilake, thoughpresent on 10.12.91, did not participate in the proceedings of theWorking Committee. This is supported by P10.1 accept the statementof the 2nd respondent and reject the said allegation of bias.
Accordingly, I reject the allegation that the expulsion of thepetitioners is invalid for contravention of rules of natural justice.
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Jayatillako and Another v Kaleel and Others (Kulatunga J.)
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CONCLUSION.For the foregoing reasons, I determine that the expulsion of the twopetitioners in these applications (Special) Nos. 1 and 2/92 was valid.In the result, I dismiss their applications.
I make no order as to costs.
WADUGODAPITIYA, J. -1 agree.Applications dismissed without costs.