SUMITH KALUGALA v. Y. P. DE SILVA

021-SLLR-SLLR-1998-V-3-SUMITH-KALUGALA-v.-Y.-P.-DE-SILVA.pdf


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Sumith Kalugala v. Y. P. de Silva
141
SUMITH KALUGALA
v.Y. P. DE SILVA
COURT OF APPEALHECTOR YAPA, J.,
J.A.N. DE SILVA, J.,
P.H.K. KULATILAKA, J.
C.A. APPLICATION NO. 645/98
August 17, 18, 20, 21, 24, 25, 26, 27, 28 and 30. 1998 Decided onSeptember 01, 1998 (Reasons September 30, 1998.)
Provincial Council Elections – Provincial Councils Elections Act, No. 2 of 1988,Section 63 – Expulsion – Jurisdiction of Court of Appeal – Duty of the Court
Appointment of Disciplinary Committee – Was petitioner given an opportunityto meet the charges – Right of Appeal to Central Committee – Proof of charges
Suppression and misrepresentation of facts – Contractual obligation to the court
Uberrima Fides.
The petitioner was elected in 1996 as a member of the Hikkaduwa PradeshiyaSabha. He was also the private secretary of the 8th respondent who was theLeader of the House of the Southern Provincial Council and sole representativeof the SLMP political party in that Council. In September, 1997, the 8th respondentwho had a dispute with the PA and who became critical of its key Ministers andHer Excellency the President, resigned from the membership of the SouthernProvincial Council. The petitioner was nominated to fill the vacancy and took oathsas a member of the Southern Provincial Council. Thereafter as petitioner did notyield to pressures by the 8th respondent to be critical of the PA he was askedto resign but he refused.
Eventually the petitioner faced an inquiry into five charges levelled against himafter which the petitioner was informed by letter dated 1.6.98 that the centralcommittee of the party had unanimously decided to expel him from the SLMPwith immediate effect The petitioner challenged the expulsion as being arbitrary,unlawful, invalid and contrary to the rules of natural justice.
Held:
Jurisdiction to hear this matter is conferred by section 63 (1) of theProvincial Councils Act, No. 2 of 1988 on the Court of Appeal. The Courtof Appeal has to determine the validity of the expulsion of a member ofa Provincial Council from membership of a recognized political party. Ifthe court declares the expulsion valid the member will lose his right tocontinue as a member of the Provincial Council and his seat will becomevacant from the date of such determination.
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In exercising (he Jurisdiction conferred on it by section 63 of the ProvincialCouncils Elections Act Court should inquire whether the expelling bodyhad –
acted within its jurisdiction,
followed the procedure laid down in the Constitution of the party,
acted in compliance with the principles of natural justice beforetaking the decision to expel the petitioners, and whether
the grounds – adduced for expelling the petitioners could besustained, and
the alleged misconduct if proved, merited the extreme punishmentmeted out.
The rules of the SLMP constitution empower the Politburo to appoint theDisciplinary Committee subject to the approval of the Central Committee.The appointment of the Disciplinary Committee by the Politburo on 27.2.98was approved by the Central Committee on 8.3.98. There was compliancewith rules (rules 16.1 and 24.1) of the SLMP constitution. Therefore theDisciplinary committee was appointed by the authority competent to appointit.
The appointment of three members of the Central Committee to theDisciplinary Committee did not make the composition of the DisciplinaryCommittee ultra vires the SLMP constitution.
No allegation of bias become established merely by the fact that themembers of the Disciplinary Committee happened to be influential membersof the Politburo as well as of the Central Committee or even from thefact that the main witness against the petitioner happened to be aninfluential member of the Central Committee in the absence of clear proofof bias.
The allegation of late receipt of the letter containing the charges cannotbe accepted in the absence of available proof not being adduced. Furtherthe conduct of the petitioner showed he had prior knowledge of the charges.
The petitioner had been given the right to present his case. He had givenevidence and called one Bala Gamage to testify on his behalf. Againsthim the 8th respondent and several other witnesses had given evidence.
He was given an opportunity to cross-examine the witnesses who testifiedagainst him but he had not made use of this opportunity.
Further the petitioner had not objected .,to any of the members ofthe Disciplinary Committee inquiring into the,allegations against him. Hehad not moved for a postponement of the inquiry for any reason and hadconsented to the holding of the disciplinary inquiry on 2.4.1998.
The petitioner's testimonial trustworthiness was also in issue.
The petitioner, had been given an opportunity to meet the charges againsthim by the Disciplinary Committee.
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The right of appeal provided by the SLMP constitution (rule 25.5), wasfrom the findings of the Disciplinary Committee and the punishment imposedby the Central Committee. The right of appeal was not available from thefindings of the Disciplinary Committee until the Central Committee imposedits punishment. A petitioner who has been expelled from the party canstill exercise his right of appeal under rule 25.5.
The petitioner was found guilty of conduct affecting the party objectivesand its activities, arbitrary actions against the District Organization of theparty, misappropriation of the salary of his Secretary and being a deserterfrom the Sri Lanka Navy.
The petitioner has failed to be honest, truthful and disciplined towards theparty, he has failed to act placing party interests before his personalinterests and to safeguard the unity of the party. He has brought the SLMPinto disrepute in view of the allegation relating to the misappropriation ofmoney. From the angle of the SLMP as a political party, these are veryserious charges. The misappropriation of money and forgery were veryserious allegations where criminal proceedings could have been instituted.
The expulsion was therefore warranted.
The petitioner was guilty of suppression and misrepresentation of facts bytendering false documents.
When the petitioner sought a declaration from court that his expulsion wasinvalid, he entered into a contractual obligation with the court and wastherefore required to disclose all material facts. There must be uberrimatides.
Cases referred to:
Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike (1993) 2 Sri LR 90.
Gamini Dissanayake v. M. C. M. Kaleel (1993) 2 Sri LR 135.
Goonaratne and others v. Premachandra and others (1994) 2 Sri LR 137,148.
Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147, 171.
Blanca Diamonds (Pvt) Ltd. v. Wilfred Van Els (1997) 1 Sri LR 360.
Rex v. Kensington Income Tax Commissioners; Princess Edmond de PolignacEx parte (1917) 1 KB 257.
Castelli v. Cook (1848) 7 Hare 89, 94.
D. L. S. L. Siiva v. Senanayaka, Upasena and others – SC 472/96 SC Minutesof 05.06.98.
APPLICATION under section 63 of the Provincial Councils Election Act.
D. S. Wijesinghe, PC with W. Dayaratne, ft. Jayawardena and S. Gamage for
petitioner.
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Sirinath Perera PC with Ananda Cooray for 1st, 2nd and 4th respondents.Adrian Perera SSC for the 7th respondent.
J. C. Weliamuna with S. Daluwatta for the 8th respondent.
N. Palihawardana for the 9th respondent.
Cur. adv. vult.
September 30, 1998.
HECTOR YAPA, J.
After the hearing of this application in terms of section 63 (1) of theProvincial Councils Elections Act, No. 2 of 1988, we made ourdetermination holding that the expulsion of the petitioner is valid. Weset down below our reasons for so holding.
The petitioner who is a member of the Southern Provincial Councilhas made this application in terms of the section 63 (1) of theProvincial Councils Elections Act, No. 2 of 1988 challenging hisexpulsion by the 4th respondent, the Sri Lanka Mahajana Party (SLMP)which is a recognized political party. By this application the petitionerinvokes the jurisdiction of this court seeking a declaration that hisexpulsion from the SLMP is invalid. At the relevant time 1st, 2nd and3rd respondents were the Chairman, the General Secretary and theDeputy Chairman respectively of the 4th respondent (SLMP). The 5threspondent was the General Secretary of the 6th respondent, thePeople's Alliance (PA) which is also a recognized political party. TheSLMP is presently one of the constituent political parties in the PA.The 7th respondent is the Commissioner of Elections. The 8threspondent is the Galle District Organizer of the SLMP and also aDeputy Chairman of the said party. The 9th respondent is the Secretaryof the Southern Provincial Council.
The Facts
According to the material available the 8th respondent hadcontested the Elections of the Southern Provincial Council held in theyear 1994 under the PA symbol and was elected as the sole
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representative of the SLMP at the said election. He was thereafterappointed as the Leader of the House of the Southern ProvincialCouncil. After the aforesaid appointment of the 8th respondent, thepetitioner was employed as his private secretary. While the petitionerwas functioning as the private secretary of the 8th respondent, he wasgiven nomination by the SLMP to contest the elections of the PradeshiyaSabha of Hikkaduwa on the PA ticket at the Pradeshiya SabhaElections held in the year 1996 and was elected as a PradeshiyaSabha member. He also continued to function as the Private Secretaryof the 8th respondent.
In September, 1997, the 8th respondent who had a dispute withthe PA and who became critical of its key ministers and Her Excellencythe President, resigned from the membership of the Southern ProvincialCouncil. After the resignation of the 8th respondent from the SouthernProvincial Council, the Politburo and the Executive Committee of theSLMP unanimously decided to nominate the petitioner as the nomineefor the said vacancy. The said decision was communicated to the 5threspondent who in turn informed the 7th respondent that the petitionerhad been nominated to fill the vacancy created by the resignation ofthe 8th respondent as a member of the Southern Provincial Council.Consequent to the said nomination of the petitioner, the 7th respondentacting in terms of section 65 (2) of the Provincial Councils ElectionsAct, appointed the petitioner as a member of the Southern ProvincialCouncil to fill the vacancy created by the resignation of the 8threspondent. Accordingly the petitioner took oaths as a member of theSouthern Provincial Council on 01.12.1997. The petitioner has pro-duced the relevant Gazette notification No. 1003/2 dated 24.11.1997(P5) and the declaration of his oath dated 01.12.97 (P6). After hebecame a member of the Southern Provincial Council, the petitionerwas requested by the SLMP to resign from the membership of thePradeshiya Sabha of Hikkaduwa.
The petitioner has stated in his application that after he becamea member of the Southern Provincial Council, the 8th respondent whocontinued to function as the District Organizer of the SLMP beganto pressurise him to criticise the PA and its leadership. However, thepetitioner who had not received any instructions from his party theSLMP, to follow a hostile attitude towards the PA or the Government,resisted such pressure brought on him by the 8th respondent. Thepetitioner alleged that the 8th respondent wanted him to criticize Her
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Excellency the President and the Cabinet of Ministers in his maidenspeech which he made on 24.12.97. However, the petitioner declinedto make any such criticism as was requested by the 8th respondent.
A copy of the minutes of the meeting of the Southern Provincial Councilheld on 24.12.97 has been produced (P8). It was the position of thepetitioner that the 8th respondent having failed to exert pressure onhim, had insisted that the vehicle permit to which the petitioner wasentitled to as a member of the Southern Provincial Council be givento him. When the petitioner had turned down this request, the 8threspondent was disappointed and therefore he had started a campaignof vilification against the petitioner with a view to have the petitionerremoved from the SLMP and also from the membership of the SouthernProvincial Council. It was stated by the petitioner that on 14.02.98when he was at his residence one Upali de Silva and SirisenaKumarsiri who were supporters of the 8th respondent had forciblyentered his house and threatened him with death, if the petitioner failedto resign from the membership of the Provincial Council. Thereafter,the petitioner had complained about this incident to the MeetiyagodaPolice who had filed action against them, in the Magistrate's Courtof Balapitiya in case No. 951. Certified copies of the B report, journalentries and the charge-sheet were produced by him (P9, P10 andP11). Further, the 8th respondent had made several malicious andfalse allegations against the petitioner stating that the petitioner wasnot performing his duties as a Provincial Council member and thathe was acting against the policies of the SLMP and therefore the8th respondent would get the petitioner expelled from the party andfrom the membership of the Southern Provincial Council.
In March, 1998, the petitioner had received a letter dated 18.03.98signed by the 2nd respondent requesting him to attend a meetingto be, held 10.00 am on 29.03.98 at the auditorium of the RailwayWelfare Association, Baseline Road, Borella (P15). This meeting wasa special meeting of the Executive Committee of the SLMP and thepetitioner attended this meeting. After the meeting the 2nd respondenthad called the petitioner and had told him that an inquiry into certainallegations made against the petitioner will be held on 02.04.98 atthe head office of the SLMP and requested him to be present. Eventhough the petitioner inquired from the 2nd respondent, as to thenature of the allegations against him and the persons who have madesuch allegations, the 2nd respondent had not divulged those particulars,to him but told the petitioner that he will be given the details at the
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inquiry. As requested by the 2nd respondent the petitioner had beenpresent at the SLMP head office Colombo by 10.00 am on 02.04.98.The 8th respondent had also been present on that occasion with alarge number of supporters who had come to testify against thepetitioner. At about 11.00 am the petitioner was called into the con-ference hall by the 2nd respondent who was joined by the 3rdrespondent the deputy chairman of the SLMP. When the 2ndrespondent informed the petitioner about the letter dated 16.03.98(P16) sent to him containing the allegations against him, the petitionerhad denied the- receipt of such a letter and stated that he had cometo the head office on that day because of the oral request made tohim by the 2nd respondent on 29.03.98. He further informed the 2ndrespondent that he did not receive any intimation of the allegationsagainst him and therefore, he was not ready to attend and participateat any formal inquiry. The 2nd respondent thereafter had stated thathe would read out the charges against the petitioner from the lettersent to the petitioner dated 16.03.98 (P16). The said letter (P16) wasreceived by the petitioner only on 16.05.98. The charges read outto the petitioner by the 2nd respondent were as follows
that the petitioner's behaviour and the conduct has adverselyaffected the objectives and the activities of the SLMP in theGalle District.
that he aided and abetted the police and the powerful politiciansof other parties to arrest the members of the SLMP on falseallegations.
that he has arbitrarily acted against the District Organizationof the party instead of carrying forward its objectives.
that he has misappropriated the salary of his secretary byfraudulently placing his signature on the relevant documents.
that he was not a person who has resigned from the SriLanka Navy, but a deserter.
After the charges were read out by the 2nd respondent, thepetitioner had informed the 2nd respondent that he was hearing theseallegations for the first time and that he was not ready for a formalinquiry. However, the 2nd respondent had insisted that the petitionershould at least briefly indicate his position with regard to these charges.
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The petitioner thereupon had protested stating that the charges werevague and lacked sufficient particulars to give answers. Due to theinsistence of the 2nd respondent, the petitioner stated that he gavean oral explanation. At the conclusion of the questioning of thepetitioner by the 2nd respondent, he was forced to place his signatureon a sheet of paper without giving him an opportunity to read hisstatement. The 3rd respondent had not actively participated in thequestioning. Thereafter, the 2nd respondent had requested the 8threspondent who was the only other person present throughout theproceedings, apart from the petitioner, 2nd and 3rd respondents, tostate his allegations against the petitioner. The 8th respondentthereupon handed over a written statement to the 2nd respondent andorally denied what was stated by the petitioner. The petitioner wasnot given an opportunity to ask any questions or to examine thedocuments tendered by the 8th respondent. When the petitioner madea request to question the 8th respondent, he was told that he hadno right to do so and that he should remain silent. The atmosphereat the said inquiry was one of utter hostility to the petitioner. On thatoccasion, the 2nd respondent requested the petitioner to call RanjithGamage one of the persons who accompanied him and he wasquestioned and his statement was recorded. Thereafter, the 8threspondent called several of his supporters as witnesses and handedover some statements to the 2nd respondent. The petitioner was notgiven any opportunity to peruse any of these documents. At theconclusion of the inquiry the 2nd respondent indicated that the petitionerwill be informed of the decision later. Immediately thereafter, thepetitioner had gone to meet the 1st respondent to complain aboutthe proceedings held by the 2nd respondent, but failed to meet himas he was warded in the Colombo National Hospital.
The petitioner on 11.06.98 received a letter dated 01.06.98 underregistered post signed by the 2nd respondent, stating that the centralcommittee of the party at its meeting held on 30.05.98 had unani-mously decided to expel the petitioner from the SLMP with immediateeffect. The said letter with the envelope was produced marked P25and P25A. The petitioner on or about 11.06.98 received another letterfrom the 7th respondent dated 08.06.98 (P26) enclosing a tetter fromthe 5th respondent dated 03-06.98 (P27) stating inter alia that the5th respondent has informed him that the petitioner should be removedfrom his membership of the Southern Provincial Council, as he wasinformed by the 2nd respondent that the petitioner had been expelled
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)149
from the SLMP, which is a constituent party of the People's Alliance.The 7th respondent has further stated in the said letter (P26) thatthe seat of the petitioner will fall vacant at the expiration of one monthfrom 03.06.98 in terms of section 63 (1) of the Provincial CouncilsElections Act.
In the above circumstances, the petitioner has stated that hisexpulsion is arbitrary, unlawful, invalid and contrary to the rules ofnatural justice. Therefore, the petitioner has filed this application tohave his expulsion from the membership of the SLMP be declaredinvalid in terms of the provisions of section 63 (1) of the ProvincialCouncils Elections Act.
Jurisdiction of the Court of Appeal
The proviso to section 63 (1) of the Provincial Councils ElectionsAct, No. 2 of 1988 confers on the Court of Appeal, a similar jurisdictionas that has been conferred on the Supreme Court by the proviso toArticle 99 (13) (a) of the Constitution in relation to the members ofParliament. The proviso to section 63 (1) of the Provincial CouncilsElections Act, provides as follows :
"Provided that in the case of the expulsion of a member of aProvincial Council his seat shall not become vacant if prior to theexpiration of the said period of one month he applies to the Courtof Appeal by petition in writing and the Court of Appeal upon suchapplication determines that such expulsion was invalid. . . . Wherethe Court of Appeal determines that the expulsion was valid thevacancy shall occur from the date of such determination.
Therefore, the Court of Appeal is called upon to determine thevalidity of the expulsion of a member of a Provincial Council frommembership of a recognized political party. If such expulsion isdeclared valid such member of the Provincial Council will lose hisright to continue as a member of the Provincial Council and his seatwill become vacant from the date of such determination. The saidsection 63 therefore is intended to protect a member of the ProvincialCouncil duly elected by the people or upon nomination by a politicalparty, from being denied the right to continue as a member excepton valid grounds.
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In the case of Tilak Karunaratne v. Mrs. Sirimavo Bandaranaikd'•and others it has been held that the jurisdiction of the Supreme Courtin terms of the proviso to Article 99 (13) (A) is wide; it is an originaljurisdiction on which no limitations are placed. In deciding whetherthe expulsion of a Member of Parliament was valid or invalid someconsideration of the merits is obviously required. Dheeraratne, J. inthe said case at page 101 referred to the nature and the scope ofthe court's jurisdiction in the following terms. “The nature of thejurisdiction conferred on the Supreme Court in terms of the provisoto Article 99 (13) (a) is indeed unique in character; it calls for adetermination that expulsion of a Member of Parliament from arecognized political party on whose nomination paper his name appearedat the time of his becoming such Member of Parliament, was validor invalid. If the expulsion is determined to be valid, the seat of theMember of Parliament becomes vacant. It is this seriousness of theconsequence of expulsion which has prompted the framers of theConstitution to invest that unique original jurisdiction in the highestcourt of the Island, so that a Member of Parliament may be amplyshielded from being expelled from his own party unlawfully and/orcapriciously. It is not disputed that this court's jurisdiction includes aninvestigation into the requisite competence of the expelling authority;an investigation as to whether the expelling authority followed theprocedure, if any, which was mandatory in nature; an investigationas to whether there was breach of principles of natural justice inthe decision-making process; and an investigation as to whether inthe event of grounds of expulsion being specified by way of chargesat a domestic inquiry, the member was expelled on some othergrounds which were not so specified". Similar views were expressedin the case of Gamini Dissanayake v. M. C. M. KaleeP1 andOthers .
In the case of Goonaratne and Others v. Premachandra andOthersW at 148 the Court of Appeal after having considered the abovejudgments of the Supreme Court, observed as follows: “It is clear fromwhat has been stated in the judgments cited, that this court inexercising the jurisdiction conferred on it by section 63 of the ProvincialCouncils Elections Act, should inquire whether the expelling bodyhad (1) acted within its jurisdiction, (ii) followed the procedure laiddown in the constitution of the party, (iii) acted in compliance with
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the principles of natural justice before taking the decision to expelthe petitioners and (iv) whether the grounds adduced for expelling thepetitioners could be sustained and (v) whether their alleged misconductif proved, merited the extreme punishment meted out to them".
jurisdictional ultra vires
The term "jurisdiction" generally means the legal power or authorityto give a decision on a matter. The lack of jurisdiction can arise inmany ways. It is best expressed in the words of Lord Reid in thecase Anisminic Ltd. v. Foreign Compensation Commission at 171where he stated as follows: "But there are many cases where, althoughthe tribunal had jurisdiction to enter on the inquiry, it has done orfailed to do something in the course of the inquiry which is of sucha nature that its decision is a nullity. It may have given its decisionin bad faith. It may have made a decision which it had no powerto make. It may have failed in the course of the inquiry to complywith the requirements of natural justice. It may in perfect good faithhave misconstrued the provisions giving it power to act so that it failedto deal with the question remitted to it and decided some questionwhich was not remitted to it. It may have refused to take into accountsomething which it was required to take into account. Or it may havebased its decision on some matter which, under the provisions settingit up, it had no right to take into account. I do not intend this listto be exhaustive. But if it decides a question remitted to it for decisionwithout committing any of .these errors it is as much entitled to decidethat question wrongly as it is to decide it rightly".
In this application it was submitted on behalf of the petitioner thatthe Disciplinary Committee that inquired into the conduct of the petitionerwas not constituted in accordance with the SLMP constitution (2R1)and therefore the disciplinary body did not have the power to holdthe inquiry. It was submitted that the said Disciplinary Committeelacked jurisdiction for three reasons. First the learned counsel con-tended that the Disciplinary Committee was not a standing DisciplinaryCommittee of the party. Secondly it was argued that the said com-mittee was not appointed by the authority that had the competence
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to appoint this body and thirdly the counsel submitted that the com-position of the disciplinary body was contrary to the provisions of theSLMP constitution. It was submitted that according to rules 16.11 and24.1 of the SLMP constitution (2R1) provision is made to appointthe Disciplinary Committee of the party by the Central Committee andargued that the aforesaid provisions clearly intended the DisciplinaryCommittee to be a standing committee of the party and not an adhoccommittee created to inquire , into a particular case. It was furthercontended that the Disciplinary Committee of party should normallyconsist of persons who are not actively involved in the affairs of theparty and the task of appointing this committee is solely entrustedto the central committee and to no other organ of the party. In thiscase it was argued that the appointment of the national organizer(Leader of the party), the general secretary and the assistant secretaryof the SLMP, who are the powerful members of the SLMP, asmembers of the Disciplinary Committee, had the effect of taking awaythe objectivity and the fairness that was expected from such a dis-ciplinary body.
It was submitted that according to rules 16.11 and 24.1 of the SLMPconstitution, the Disciplinary Committee should be appointed by theCentral Committee and the Politburo was not the competent authorityto appoint the said committee. However, in this case the DisciplinaryCommittee was appointed on 27.02.98 not by the Central Committeebut by the Politburo of the SLMP (2R6). Further, it was contendedthat rule 17.1 of the constution which permitted the Politburo to takedecisions subject to the approval of the Central Committee, had noapplication to the appointment of a standing committee like theDisciplinary Committee. It was also submitted that rule 17.6 whichpermitted the Politburo to take action in disciplinary matters of themembers by exercising the powers vested in the Central Committeeand subject to the approval of the said committee, had no applicationin this instance. The reason being that the appointment of theDisciplinary Committee by the Politburo was not made subject to theapproval of the Central Committee (2R6). According to 2R6, the Politburo appointed the Disciplinary Committee consisting of threemembers and directed the said committee to summon the 8th respond-ent and other Galle District organization leaders for this purpose and
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to conclude the inquiry early and submit its report to the Politburo.It was argued that this conduct on the part of the Politburo, cannotmean that the appointment of the Disciplinary Committee was madesubject to the ratification by the Central Committee but a direct andfinal exercise of power by the Politburo. Therefore, it was contendedby Mr. Wijesinghe, PC, that the Disciplinary Committee was notappointed by the authority (Central Committee) which had the powerto do so, under the SLMP constitution.
It was also contended by counsel that the composition of theDisciplinary Committee was contrary to the provisions of the SLMPconstitution. The inclusion of three members of the Central Committeein the Disciplinary Committee was ultra vires the constitution, for thereason that the Central Committee was the supreme body of the SLMPhaving the power to hear appeals from a decision of the DisciplinaryCommittee. Rule 25.5 of the SLMP constitution provides that everymember of the party has the right of appeal to the Central Committee,against any disciplinary order taken against any member. In thecircumstances, it was argued that the constitutional right of appealgiven to a member against the findings of a Disciplinary Committeeto the Central Committee, would be rendered nugatory, if the Dis-ciplinary Committee members are drawn from the Central Committee.It was also pointed out by counsel that according to rule 15.9 of theSLMP constitution, specific provision has been made to the particularcommittees to which the members of the Central Committee shouldbe drawn. Further the absence of any reference that the DisciplinaryCommittee should be drawn from the Central Committee in rules 16.11and 24.1 of the SLMP constitution and the conferment of the appellatejurisdiction in the Central Committee would show that the constitutionof the SLMP (4th respondent) did not provide for the members ofthe Central Committee to be appointed to the Disciplinary Committtee.Therefore, it was submitted on behalf of the petitioner that theDisciplinary Committee that inquired into the conduct of the petitionerwas not constituted in accordance with the SLMP constitution and inthe circumstances the said disciplinary body did not have thejurisdiction to hold the disciplinary inquiry against the petitioner.
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The learned counsel for the respondents on the other hand arguedthat the very nature of a Disciplinary Committee is adhoc. He referredto rule 15.9 of the SLMP constitution which names the committeesthat should be set up by the Central Committee and these committeesdo not include a Disciplinary Committee. However, it was pointed outby counsel that rule 15.9 permitted the Central Committee to set upother committees including a Disciplinary Committee when it becamenecessary. Learned counsel further contended that advisedly a stand-ing Disciplinary Committee was not provided in the constitution of theSLMP, for the reason that such a body would become incompetentto hold a disciplinary inquiry, in the event of any allegations ofmisconduct or indiscipline, against a member of members of theDisciplinary Committee. It may be observed here that the very factthat the constitution of the SLMP after having provided for theappointment of the Disciplinary Committee by the Central Committeehas not created the said body, is an indication that the DisciplinaryCommittee was not intended to function as a standing DisciplinaryCommittee, but as a body that could be set up as and when theneed arose, in terms of the rule 15.9 of the SLMP constitution. Further,rule 15.9 of the SLMP constitution. Further, rule 15.9 appears to bethe only provision under the SLMP constitution which provides forthe creation of various committees, rule 25.3 of the SLMP constitutionprovides for an ex parte inquiry in certain situations by the DisciplinaryCommittee to be appointed by the Central Committee. The languageused in rule 25.3 to read "Disciplinary Committee to be appointed bythe Central Committee" appears to suggest that the DisciplinaryCommittee would be an adhoc body to be appointed by the CentralCommittee as opposed to a standing Disciplinary Committee.
The contention that the Disciplinary Committee was not appointedby the authority which had the competence to appoint such a bodynamely the Central Committee, was met by the learned counsel forthe respondents on the basis that the appointment of the DisciplinaryCommittee by the Politburo, which was approved by the CentralCommittee, was in fact the decision of the Central Committee. Hereferred us to the rules 16.3, 16.5, 17.1, 17.3 and 17.6 of the SLMPconstitution (2R1). The rule 16.3 provides that the power to maintaindiscipline and take disciplinary action against the members of the party
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)155
is vested with the Central Committee. The rule 16.5 provides that theCentral Committee has the power to delegate its power to otherorganizations and officers. The rule 17.1 provides that between twoCentral Committee meetings the Politburo has the power to act onbehalf of the Central Committee and also to take decisions subjectto the approval of the. Central Committee. The rule 17.3 provides thatsubject to the approval of the Central Committee the Politburo hasthe power to direct all the affairs of the party on behalf of the CentralCommittee. The rule 17.6 provides that the Politburo acting under thepowers vested in the Central Committee, has the power to deal withmatters relating to discipline amongst the members and the partyorganizations, subject to the approval of the Central Committee. Learnedcounsel therefore submitted that having regard to the above provisions,the Politburo is given the power to appoint a Disciplinary Committeesubject to the approval of the Central Committee. It was furthercontended that since the Central Committee as provided by rule 15.6is required to meet once in two months, and therefore, unless thePolitburo has the power to act subject to the approval of the CentralCommittee, the functioning of the party machinery would becomeunworkable. Therefore, the counsel submitted that the Politburo hasthe power to appoint a disciplinary Committee subject to the approvalof the Central Committee. He referred to the various stages leadingto the appointment of the Disciplinary Committee against the petitioner.In this case the Galle District Organization by its letter dated 21.02.98(2R4) has informed the SLMP about certain acts of misconduct onthe part of the petitioner and the general secretary of the party (2ndrespondent) has brought this matter to the notice of the Politburo byincluding it in the agenda dated 23.02.98 (2R5) which was consideredat its meeting held on 27.02.98, where the Politburo decided to appointa Disciplinary Committee consisting of the national organizer (as thechairman of the Disciplinary Committee), the general secretary andthe assistant secretary, T. I. de Silva (2R6). It was contended thatin terms of rule 17.6 of the SLMP constitution, the Polit Bureau isempowered to appoint the Disciplinary Committee subject to theapproval of the Central Committee. Thereafter, the appointment of theDisciplinary Committee by the Politburo was referred to the CentralCommittee for approval by including it in the agenda prepared on
(2R7) and the Central Committee at its meeting dated
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approved the decision taken by Politburo on 27.02.98 toappoint a Disciplinary Committee (2R8).
Therefore, it would appear on a consideration of the above rulesof the SLMP constitution (2R1) that the Politburo is empowered toappoint the Disciplinary Committee, subject to the approval of theCentral Committee. The appointment of the Disciplinary Committeeby the Politburo on 27.02.98 (2R6) has been approved by the CentralCommittee on 08.03.98 (2R8). Further, it is stated in 2R8 that theCentral Committee not only approved the said decision of the Polit-buro but in addition the Central Committee decided to appoint thenational organizer, the secretary, and the assistant secretary T. I. deSilva as the members of the Disciplinary Committee. Therefore, it isvery clear from 2R8 that the Central Committee not only approvedthe appointment of the Disciplinary Committee by the Politburo butin fact had appointed the three members of the Disciplinary Committeeby naming them. In the circumstances, it would appear that there hadbeen compliance of rules 16.1 and 24.1 of the SLMP constitution.Therefore, the submission of the counsel for the petitioner, that theDisciplinary Committee was not appointed by the authority competentto appoint the said body should fail.
It was submitted on behalf of the petitioner that the compositionof the Disciplinary Committee was contrary to the SLMP constitution(2R1), in that the three members of the Central Committee wereincluded in the Disciplinary Committee. This argument was based onthe rule 25.5 of the SLMP constitution which provides an appeal toa member of the party from a disciplinary order, to the CentralCommittee. It was pointed out that this constitutional right of appealto the Central Committee, against the findings of the DisciplinaryCommittee consisting of three members of the Central Committee,would be rendered nugatory if the appellate body is to consist ofmembers of the Central Committee. It was submitted that in theabsence of such provision in rules 16.11 and 24.1 as to the personswho should be appointed to a' Disciplinary Committee, and further,the conferment of appellate authority on disciplinary matters to theCentral Committee was a clear indication that the SLMP constitutiondid not envisage members of the Central Committee being appointed
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)157
to the Disciplinary Committee. Therefore, counsel argued that theinclusion of three members of the Central Committee in the DisciplinaryCommittee was ultra vires the constitution.
However, it was contended on behalf of the respondents, that theSLMP constitution (2R1) required the appointment of office-bearersof the party to the Disciplinary Committee, in view of rule 15.3 whichrequired the office-bearers to be drawn necessarily from the membersof the Central Committee. Further, it was contended that in view ofrule 16.5 any delegation of power by the Central Committee couldonly be made to the office-bearers of the party (SLMP) as referredto in rule 15.3 who should necessarily be members of the CentralCommittee. In addition, it was submitted by counsel that the CentralCommittee being a larger body consisting of 67 members and there-fore, the likelihood of any prejudice being caused to a member whohas appealed to the Central Committee from a disciplinary order, wouldbe minimal. It was further submitted that the structure of the SLMPconstitution (2R1) is such that one cannot avoid a situation wheremembers of the Disciplinary Committee, also being members of theCentral Committee which would sit as an appellate body. Havingregard to the provisions of the SLMP constitution, it would appearthat the above situation complained of by the petitioner, would beunavoidable as a matter of necessity, in view of the structure of theSLMP constitution to which the petitioner has subscribed as a member.Under these circumstances, we hold that the composition of theDisciplinary Committee was not ultra vires the SLMP constitution.
Breach of Natural Justice
The petitioner has pleaded that he has been expelled from themembership of the party (SLMP) in breach of the rules of naturaljustice and therefore, the court will hold that the expulsion is invalid.It was contended on behalf of the petitioner, that the application ofnatural justice principles meant the observance of three main features,namely that the petitioner's right to have his case to be heard byan unbiased tribunal, his right to have notice of the charges ofmisconduct and his right to be heard in answer to those charges.
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Learned counsel submitted that in this case, the petitioner wasdenied the right to be heard by an unbiased tribunal. He contendedthat the Disciplinary Committee consisted of persons who were membersof the Politburo and the Central Committee. Learned counsel referredus to the fact that the Politburo on 27.02.98 on a complaint dated
made to them by the Galle District Organization (2R4)decided to hold a disciplinary inquiry against the petitioner andnominated the Disciplinary Committee (2R6) without calling for anexplanation from the petitioner and on 08.03.98 the members of theCentral Committee ratified the said decision (2R8). The ratification ofthe decision of the Politburo was also done by the Central Committeewithout calling for an explanation from the petitioner. It was furthersubmitted that these decisions were taken by the Politburo and theCentral Committee which comprised the 8th respondent who was theprincipal witness against the petitioner. In this connection it must bestated that it would have been ideal to have a Disciplinary Committeeappointed completely outside the Politburo and the Central Committee.However, as pointed out by counsel, for the respondents, that thestructure of the SLMP constitution is such that one cannot avoid asituation where persons who become members of the DisciplinaryCommittee from being members of the Politburo and the CentralCommittee as well. Political parties by their very nature are voluntaryorganizations. The membership will depend on the constitution.Therefore, a person joining a political party will be entering into acontract with the party to be governed by the party constitution. Hence,it is the structure of the constitution of the party to which the petitionerhas subscribed, which makes this system necessary. When the SLMPconstitution has provided this machinery, to determine allegations ofmisconduct by its members, all that the court is required to do isto see whether there has been a substantial compliance of thoserequirements in the SLMP constitution. Further, under these circum-stances the allegation of bias cannot be considered as having beingestablished, purely by the fact that the members of the DisciplinaryCommittee happened to be influential members of the Politburo aswell as the Central Committee, or even from the fact that the mainwitness against the petitioner happened to be an influential member
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)159
of the Central Committee, unless there was very clear proof of bias.It is for the reason that in cases of this nature, where the partyconstitution has required the formation of a disciplinary body in thismanner, one must assume that such a disciplinary body was capableof considering the allegations of misconduct against a member withoutbias, unless bias was very obvious from the conduct of the membersof the Disciplinary Committee. This is because a line however mustbe drawn between genuine and fanciful cases of bias.
An allegation was made by the petitioner that he was not givennotice of the inquiry and that it was only on 29.03.98 when thepetitioner attended an executive committee meeting of the party, thathe was told by the 2nd respondent about an inquiry to be held againsthim at the party headquarters on 02.04.98. Further on that occasionthe 2nd respondent did not inform him of the nature of the allegationsagainst him. The petitioner's position was that the registered letterdated 16.03.98 (P16) sent to him was not received by him until
well after the inquiry that was held on 02.04.98. It was statedby him that the delay was probably due to the postal strike. In addition,the letter dated 10.03.98 (2R9) sent to petitioner giving the notice ofthe charges, the date and the time of the inquiry and the names ofthe members of the Disciplinary Committee was not received by him.It was contended on behalf of the petitioner that this 2nd letter of
(2R9) was a dubious document and should not be actedupon. With regard to the registered letter dated 16.03.98 (P16), it wassubmitted by the respondents that since the petitioner has markedthe envelopes P25A and P26A in respect of the letters P25 and P26received by him, to show the date of their receipt, he could havemarked the envelope in respect of P16 to show that it was receivedonly on 16.05.98. This has not been done even though the burdenwas on the petitioner to prove that the registered letter (P16) wasin fact received by him on 16.05.98. Regard to the 2nd letter (2R9)it was stated that the 2nd respondent had posted a similar letter dated
(2R10) to the 8th respondent, informing him about the inquiryto be held against the petitioner on 02.04.98. It was contended onbehalf of the respondents that if 2R9 was a fabrication, then similarly2R10 should also be a fabrication and if that was so, the question
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would arise as to what additional benefit the 2nd respondent couldhave expected by filing 2R10 in court. In these circumstances, it wouldappear that the position taken up by the petitioner that he receivedP16 only on 16.05.98 and the letter 2R9 was a fabricated document*cannot be accepted. Even assuming for the purpose of argument thatthe petitioner did not receive either P16 or 2R9, it was admitted bythe petitioner that he was told by the 2nd respondent that an inquiryagainst him would be held at the party headquarters on 02.04.98.However, the conduct of the petitioner thereafter, appears to suggestthat he was not conducting himself as a person who had no knowl-edge of the charges or the allegations against him. For instance, ifthe petitioner had no knowledge of the allegations against him, onewould have expected the petitioner to have made every effort to findout what the allegations against him were, and further, he should havemade a request for additional time to the Disciplinary Committee, onthe basis that he had no intimation of the allegations against him andtherefore, he needed time to prepare his case. But what took placesubsequently at the inquiry on 02.04.98 clearly shows the conductof a person who had prior knowledge of the allegations against himand that he was prepared to go through the inquiry confidently andvoluntarily without any complaint. Therefore, under these circumstancesthe complaint by the petitioner that he had no notice of the allegationsagainst him prior to inquiry, cannot be accepted.
The next question to be decided here is whether the petitionerhad been given an opportunity to answer the charges against him.It was submitted on behalf of the petitioner that the disciplinary inquiryalleged to have been held on 02.04.98 was a farce and the omissionsand weaknesses on the part of the Disciplinary Committee in con-ducting a proper inquiry against the petitioner were sought to becovered by the admissions purportedly obtained from the petitionerat the inquiry. It would appear from the proceedings of the disciplinaryinquiry held on 02.04.98 (2R12A) that the petitioner had consented. to the procedure that was adopted at the inquiry and further that hehad informed the Disciplinary Committee that he wanted to commencethe inquiry by giving evidence to exonerate himself of the charges.He had also wanted the inquiry against him to be completed on that
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)161^
day itself and therefore, he had signed the document (2R12P) statingthat he had voluntarily participated in the inquiry without any duressand that he was prepared to accept any decision taken by the party,as a member of the SLMP. However subsequently the petitioner inhis counter affidavit has categorically denied that he consented to theprocedure adopted at the inquiry and alleged that duress was exertedon him. It is observed from the proceedings of the disciplinary inquiry,that the petitioner had been given the right to present his case. Thepetitioner and one Bala Gamage had given evidence on behalf of thepetitioner and several other witnesses including the 8th respondenthad given evidence against the petitioner. The petitioner had beengiven the opportunity to cross-examine the witnesses who testifiedagainst him, but it appears that he had not made use of thisopportunity. Further, it is clear from the proceedings that petitionerhad not objected to any member or the members of the DisciplinaryCommittee inquiring into the allegations against him. It is to be notedthat the petitioner has not moved for a postponement of the inquiryfor any reason and had consented to the holding of the disciplinaryinquiry on 02.04.98. In view of these considerations, the petitionercannot be permitted now to challenge the vires of the DisciplinaryCommittee and further we are unable to accept his complain that hewas not given an opportunity to answer the charges against him. Itis also doubtful whether the petitioner could be believed when hestated in his counter affidavit, that he did not consent to the procedureadopted at the inquiry and his allegation that there was duress exertedon him, specially by the 2nd respondent. In fact it is seen from thepapers filed by the petitioner, that an attempt had been made by himto show that he did not even know the names of all the memberswhich constituted the Disciplinary Committee, so much so, that hehad failed to make all of them as respondents to this application. Thisconduct on the part of the petitioner goes to show that he is nowmaking an effort to build up a case completely different to the caseseen from the material available. Therefore, his behaviour seems tosuggest that he is now trying to change the facts to his advantage.Thus, his testimonial trustworthiness itself becomes an issue in thiscase. In these circumstances, we hold that the petitioner had beengiven an opportunity to meet the charges against him before theDisciplinary Committee.
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Another matter that merits consideration is the question relatingto the deprivation of the right of appeal given to the petitioner underthe SLMP constitution. It was pointed out by counsel that rule 25.5of the SLMP constitution provided a right of appeal to a member,against a disciplinary order made against him to the CentralCommittee. In the circumstances, he contended that the constitutionrequired the Disciplinary Committee findings to be communicated toan aggrieved party to enable him to exercise his right of appeal asprovided under rule 25.5. It was therefore submitted that the failureto communicate the findings of the Disciplinary Committee to thepetitioner and his immediate expulsion from the party, upon the receiptof the report of the Disciplinary Committee by the Politburo and theCentral Committee, effectively deprived the petitioner of the exerciseof his right of appeal. Learned counsel further pointed out that theimmediate expulsion of the petitioner from the membership of the party,prevented the petitioner from appealing, since by virtue of his expulsionhe lost his membership of the party and in the circumstances, thepetitioner could not have appealed to the Central Committee for thereason that the right of appeal was only granted to a member of theparty. It was contended on behalf of the respondents that the SLMPconstitution provided only a single right of appeal to a member, interms of rule 25.5. Therefore, it was argued by counsel for therespondents, that if the submission made on behalf of the petitioneris accepted, then the petitioner is accepted, then the petitioner hada right of appeal from the findings of the Disciplinary Committee, beforeany punishment was meted out and therefore, it would be necessaryfor the petitioner to make a second appeal to the Central Committee,once a decision regarding punishment was made. Since two appealswere not provided under the SLMP constitution, it was submitted thatthe only right of appeal the petitioner had, was an appeal made againstboth the findings of the Disciplinary Committee and the punishmentmeted out to him by the Central Committee. Therefore, on a con-sideration of the rule 25.5 it would appear that the right of appealpermitted to a member under this rule is an appeal that could bemade by him, after the imposition of punishment by the CentralCommittee and not at the stage when the member was found guiltyby a Disciplinary Committee. This is because the SLMP constitutionprovided for a single appeal by a member and further, that if an appeal
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)163
was allowed from a decision of the Disciplinary Committee ascontended by counsel for the petitioner, rule 25.5 could have clearlystated so, without merely stating that an appeal is permitted to amember against a disciplinary order. It must also be mentioned herethat it is open to the petitioner who has been expelled from the party,to exercise his right of appeal under rule 25.5, since he does notlose the character of a member of the SLMP to exercise his rightof appeal, for the reason that his very expulsion from the membershipof the party is being challenged by him in the appeal.
Merits of the case
According to the letter dated 01.06.98 (2R18) the petitioner hadbeen expelled from the membership of the party (SLMP), since hehad been involved in acts of indiscipline in violation of the partyconstitution. According to the Disciplinary Committee report (2R15) thepetitioner was found guilty of four of the five charges that were levelledagainst him. Five charges which were referred earlier in detail relatedto the following. The petitioner's conduct affecting the party objectivesand its activities, his involvement in the arrest of members of the partyon false allegations, his arbitrary actions against the District Organi-zation of the party, his act of misappropriating the salary of hissecretary and finally he being a deserter/from the Sri Lanka Navy.Out of the four charges the petitioner was found guilty, the first threecharges related to his conduct as a member of the party and thefourth charge related to the misappropriation of the salary of hissecretary by fraudulently placing his signature on the voucher. TheDisciplinary Committee after having decided that the petitioner wasguilty of the first four charges, left the decision on the fifth charge .to be taken by the Politburo. Further, the Disciplinary Committeedecided that since the petitioner was guilty of the first four charges,he has acted in violation of rule 7 (responsibilities and duties ofmembers) and rule 27 (grounds for taking disciplinary action) of theSLMP constitution and recommended to the Central Committee to takedisciplinary action in terms of rule 28, which made provision forpunishments under the SLMP constitution. The Disciplinary Committeein addition decided that in terms of rule 7 of the SLMP constitution
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the petitioner has failed to perform his duties and responsibilities asa member. He has failed to be honest, truthful and disciplined towardsthe party and has failed to act placing party interests before hispersonal interests, safeguarding the unity of the party. He has furtherbrought the party (SLMP) into disrepute in view of the allegationrelating to the misappropriation of money. Therefore, under thesecircumstances from the angle of the SLMP as a political party, theseare very serious charges. In addition, the fourth charge involving anact of misappropriation of money and forgery could be consideredas a very serious allegation where criminal proceedings could havebeen initiated against the petitioner. Therefore, the said conduct ofthe petitioner is likely to bring discredit to the party. In the aforesaidcircumstances, it would appear that the petitioner had been found guiltyof very serious charges by the Disciplinary Committee and the CentralCommittee had unanimously decided to expel the petitioner from theparty (SLMP). Therefore, we are of the view that the expulsion ofthe petitioner is warranted in the circumstances.
Suppression and misrepresentation of facts from the court bytendering false documents
At the hearing of this application, it was brought to the notice ofcourt by the President's Counsel appearing for the 1st; 2nd and 4threspondents that the petitioner has attempted to misrepresent factsto court and for this purpose he has tendered false documents. Onthis matter, it is pertinent to focus our attention to the document 2R4relied on by the 2nd respondent and the document P28 with itsannexure X which has been relied upon by the petitioner to counterthe contents of the document 2R4. The 2nd respondent in his state-ment of objections in paragraph 27 has disclosed to court that byletter dated 21.02.98 marked 2R4, the District Secretary RatnapalaWimalaratne had informed the 2nd respondent who is the GeneralSecretary of the SLMP that at the Galle District Committee meetingheld on 08.02.98 several allegations were directed against thepetitioner and the said committee had decided to inform the SLMPof those allegations. The District Secretary in his letter dated 21.02.98(2R4) had referred to the five allegations against the petitioner.
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)165
The petitioner in his counter affidavit at paragraphs 22 and 31 (ii)has taken up the position that 2R4 is a fabrication because RatnapalaWimalaratne was neither the District Secretary nor a member of theDistrict Committee at the relevant time. In order to support this positionan affidavit dated 13.08.98 from Premalal Kodituwakku has been filedmarked P 28 along with a photocopy of the minutes relating to theGalle District Convention held on 13.07.97 marked "X". Even thoughthe affidavit is from one Premalal Kodituwakku (P28) we find that inparagraph 31 (ii) of the counter affidavit of the petitioner the referenceis to an affidavit from Padmalal Kodituwakku. Premalal Kodituwakkuin his affidavit (P28) states that he is a member of the SLMP andhe was present at the District Convention held on 13.07.97 and thatRatnapala Wimalaratne's name did not appear in the list as a com-mittee member and further that the said Ratnapala Wimalaratne wasnot appointed as the District Secretary at that meeting or thereafter.He referred to his signature in the attendance register annexed to"X". With regard to this matter learned counsel appearing for the 1st,2nd and 4th respondents after having referred us to the report of theDistrict Convention held on 13.07.97 which is contained in the docu-ment "X", with the permission of Court produced the original of thesaid "X" document marked A1 and the attendance register markedA2. On a perusal of the original documents marked A1 and A2, weobserve that the original report had been prepared by RatnapalaWimalaratne with his signature. His signature is placed below the word"s®csO" and the name Ratnapala Wimalaratne is typed below hissignature. Further, Cyril Dharmawardana, 8th respondent, has alsoplaced his signature above his name as the Galle District Organizer.However, it is observed that the report in "X" does not containRatnapala Wimalaratne's signature and his name and also the sig-nature of Cyril Dharmawardana, Galle District Organizer. Learnedcounsel therefore submitted that “X" is a false document. He alsoreferred us to the copy of the attendance register dated 13.07.97 indocument "X" produced by the petitioner and to the original attendanceregister of 13.07.97 in document A2, and submitted that in the at-tendance register of 13.07.97 in document “X", there are signaturesgoing up to Nos. 126, whereas in the original attendance register indocument A2 there are only signatures going up to Nos. 124 and
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the last signature is that of Kama! Kariyawasam. In document "X* twoother names K. Sunil and Sumith Kalugala (petitioner) with theiraddresses and their signatures appear at Nos. 125 and 126, respec-tively. Learned counsel submitted that this circumstance also goes toestablish that the document “X" is a false document which has beenprepared for the purpose of the petitioner's case with the object ofshowing that the petitioner had attended the party convention heldon 13.07.97. Therefore, on a perusal of the document "X11, with theoriginal marked “A1“ & "A2" in respect of the two matters referredto above, it is manifestly clear that “X" is a false document. In thecircumstances, it would appear that the petitioner has deliberatelyattempted to suppress from and misrepresent facts to the court bytendering two false documents.
In addition to the above matter the learned counsel for therespondents referred us to few other instances, where the petitionerhas not been truthful with the court. However, in view of the seriousnature of the misrepresentation observed from the document "X”referred above it is unnecessary to go into the details of the otherallegations referred to by Counsel for the respondents.
When the petitioner filed this application in court in terms of section63 of the Provincial Councils Elections Act, No. 2 of 1988, seekinga declaration from court that his expulsion from the membership ofthe SLMP is invalid, he has entered into a contractual obligation withthe court. In view of this contractual relationship the petitioner isrequired to disclose all material facts fully correctly and frankly. Thisis indeed a duty cast on any litigant who comes to court seeking relief.This matter was considered by Jayasuriya, J. in the case of BlancaDiamonds (Pvt) Ltd. v. Wilfred Van Els and Two Others 1997 1 SLR360(5). Where it was held that when a party is seeking discretionaryrelief from court upon an application for a Writ of Certiorari, he entersinto contractual obligation with the court when he files an applicationin the Registry and in terms of that contractual obligation he is requiredto disclose uberrima tides and disclose all material facts fully andfrankly to court.
CASumith Kalugala v. Y. P. de Silva, (Hector Yapa, J.)167
It was submitted on behalf of the respondents that any person whomisleads court, misrepresent facts to court or utter falsehood of courtwill not be entitled to redress from court. It was contended that thiswas a well-established proposition of law, since courts expect a partyseeking relief to be frank and open with the court and therefore courtswill say "we will not listen to your application because of what youhave done". Learned counsel further submitted that this principle hasbeen applied even in an application that has been made to challengea decision made without jurisdiction. Whether the order has beenmade without total lack of jurisdiction is not relevant in such cases.He cited the case of Rex v. Kensington Income Tax Commissioners;Princess Edmond De Polignac, Ex parte 1917 1 KB 257(8) in supportof this proposition.
Learned President's Counsel on behalf of the petitioner made asubmission to counter this position by urging that the principle ofuberrima tides has been applied only in writ cases where discretionaryrelief is sought from court. However, it would appear that the appli-cation of this principle has not been restricted in its application assubmitted by counsel. Even in admiralty cases involving the grant ofinjunctions this principle has been applied. In the case of Castelli v.Cook 1848 7 HARE 89 at 94,(7) the Vice Chancellor Sir James Wigramconsidered this proposition and stated as follows:
"The rule, as I understand it, is this: that a plaintiff applyingex parte comes under a contract with the court. He will statethe whole case fully and fairly to the court. If he fails to dothat, and the court finds, when the other party applies to dissolvethe injunction, that any material fact has been suppressed ornot properly brought forward, the plaintiff is told that the courtwill not decide on the merits, and that, as he has broken faithwith the court, the injunction must go".
In a Fundamental Rights Case SC Application No. 472/96D. L. S. L. Silva v. Senanayake Upasena and Others decided on05.6.98(e| Fernando, J. has set aside his own judgment dated 27.06.97,since it was obtained by wilful misrepresentation and fraud. In thatcase the court went to the extent of directing the Attorney-General
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to take appropriate criminal proceedings in respect of the misrepre-sentations made by the petitioner to the court.
Therefore, in the instant case the petitioner has wilfully suppressedmaterial facts from the court by tendering two false documents andhas thereby violated his contractual obligation to the court to discloseuberrima tides. In the circumstances, the relief sought by the petitionershould be refused without going into the merits of the case. However,since the petitioner in this application was exercising a statutory rightgiven him and further the fact that serious consequences would flowfrom his expulsion, we decided to consider fully the merits of this caseas well.
In cases of this nature the burden of satisfying court that theexpulsion of the petitioner is valid is with the respondents who haveexpelled the petitioner from the SLMP. In taking this decision therespondents have satisfied the court that they have substantiallyfollowed the procedure provided under the SLMP constitution,observed the principles of natural justice and has established a justifiablecase for expelling the petitioner. For the above reasons, we affirmour determination dated 01.09.98 where we held that the expulsionof the petitioner was valid and accordingly dismissed the petitioner'sapplication with costs. Further, we deeply appreciate the assistancegiven to us by counsel.
DE SILVA, J. – I agree.
KULATILAKA, J. – I agree.
Application dismissed.