Legal Services and Laws of Sri Lanka
SLR - 1993 Vol.2, Page No - 135
GAMINI DISSANAYAKE (PETITIONER IN SC 4/91)
M. C. M. KALEEL AND OTHERS
(Note : Similar applications in Cases Bearing No. 5/91, No. 6/91, No. 7/91, No. 8/91 and 9/91,
No. 10/91, No. 11/91 were heard together and disposed of in one judgment).
KULATUNGA, J. AND
No. 4 - 11/91.
OCTOBER 31 AND NOVEMBER 1, 4, 6, 7, 8, 11, 12 AND 13, 1991.
Article 99 (13) (a) of the Constitution - NoticeofresolutiontoimpeachthePresident-Speaker'snotificationto
President of entertaining resolution [Article 38 (2) (a) and (b)] - Vote of confidence inPresidentbyCabinetMembers-
Inconsistency of expulsion with the provisions of the Constitution and Statute Law - JurisdictionofWorkingCommitteeof
U.N.P. - Position of an MP vis-a-vis his Party - Signing notice of resolution toremovethePresidentandagitationfor
constitutional changes - Failure to initiate prior internal discussion -CausinginsultandinjurytothePresident-
Deceiving the Cabinet - Breach of rules of natural justice - Audi alteram partem - Bias - Mala fides.
Eight Members of the United National Party who were also members of Parliament singly filed eight petitionsbearingnumbers
SC 4 - 11/91 challenging their expulsion from the Party. The respective petitioners in applications No. SC 5/91andNo.SC
8/91 were Ministers of Cabinet rank in the UNP government shortly before their expulsion.
The petitioner in application No. SC 9/91 and the petitioner in application No. SC 10/91 were a StateMinisterandProject
Minister respectively in the UNP government shortly before their expulsion.Thepetitionershavefiledtheirrespective
applications under and in terms of Article 99 (13) (a) of the Constitution. The expulsionoftheseeightmembersofthe
United National Party if held to be valid will result in their being deprived of their seats in Parliament.
The eight applications were heard together. The eight petitioners were alleged to have participated in steps beingtakenin
late August 1991 under Article 38 (1) (e) read with Article 38 (2) for the removal of the President who was alsotheleader
of the United National Party. Notice of a resolution in terms of Article 38 (2) (a) signed by more than thehalfthewhole
number of members of Parliament was stated to have been handed intotheSpeakerwhoon28August1991informedthe
President in writing declaring that he had entertained the said resolution intermsofArticle38(2)(b)anddrawing
attention to proviso (c) to Article 70 (1). On 08 October 1991 howevertheSpeakerannouncedinParliamentthathaving
inquired into the matter he was of the view that the noticeofresolutiondidnothavetherequirednumberofvalid
signatures and accordingly could not be proceeded with.
The Speakers letter of 28 August 1991 was received by the President when a Cabinet Meeting at whichthepetitionersinSC
5/91 and SC 8/91 were present, was in progress. A vote of confidence in thePresidentwascalledforandthosepresent
including the petitioners in SC 5/91 and SC 8/91 unanimously expressed their support for the President by ashowofhands.
However, it later became known that they supported the notice and they resigned from the Cabinet on 30 August 1991.
On 30 August 1991 the President prorogued Parliament until 24 September 1991.
The resolution in question alleged-that the President was guilty ofintentionalviolationoftheConstitution,treason,
bribery, misconduct or corruption including the abuse of the powersofhisoffice,offencesinvolvingmoralturpitude,
permanent incapacity to discharge the functions of his office by reason of mental orphysicialinfirmity,underminingthe
powers of Parliament and of Cabinet Ministers, giving direct orderstoSecretariesby-passingtheirMinisters,engaging
Secretaries to obtain confidential reports ontheirMinisters,endangeringthesecurityoftheStatebyarmingthe
Liberation Tigers of Tamil Eelam (LTTE), sending off the Indian PeaceKeepingForce(IPKF)withoutconsideringmilitary
aspects, resorting to unlawful telephone tapping (including telephonesofMinisters),engaginginwastefulexpenditure,
including Gam Udawa Celebrations and establishing a one man dictatorship.
Between 30 August 1991 and06September1991thepetitionerslaunchedapubliccampaignreiteratingtheprincipal
allegations contained in the notice of resolution as well asothercriticismsofthePresidentandappealingforthe
abolition of the Executive Presidential system and the restoration of Parliamentary Democracy making theExecutivedirectly
responsible to Parliament. This campaign also revealed that opposition members had been associatedwiththepetitionerin
regard to the notice of resolution and that the petitioners desired the widest possible publicity fortheirviews.Itwas
claimed that 47 members of the UNP had signed the notice of resolution.
On 03 September 1991, 116 members of the Government Parliamentary Group presented to the Speaker a writingdated30August
1991 stating that they do not support the resolution and those of them who had signed it werewithdrawingtheirsignatures
and consent and they claimed that they had signed through mistake or because of misrepresentation.
On 05 September 1991 the petitioners anticipating disciplinary action by the Parry for expulsion institutedactionsinthe
District Court of Colombo for declarations and injunctions against steps being taken for theirexpulsion.On06September
1991 they were refused relief. Before they could go to the Court of appeal, the Disciplinary Committee of the Partymetthe
same evening and recommended expulsion. A meeting of the working Committee followed immediately thereafter, and aresolution
for the expulsion of all eight petitioners was passed. On 07 September 1991 the2500strongNationalExecutiveCommittee
(NEC) unanimously endorsed that decision. By letters dated 09 September 1991 the petitioners wereinformedthattheywere
expelled from the party with effect from 06 September 1991 by a decision of the Working Committee. No reference wasmadeto
The petitioners continued their public campaign through meetings and rallies countrywide, press conferences and publicityin
The petitioners filed the present applications and their principal challenge was on the following grounds
(a) Absence of jurisdiction in the Working Committee.
(b) Inconsistency with the provisions of the Constitution and Statute Law.
(c) Breach of the rules of natural justice particularly the audi alteram partem rule.
(d) Bias and mala fides.
The resolution of the NEC (passed on 19 April 1991) by using the phrase ' full powers to carry out theresponsibilitiesand
functions of the National Executive Council ' manifests an intention to delegate all powers, duties andfunctionsincluding
the responsibility and the function in relation to disciplinary matters.
The Party Constitution does not treat the Working Committee as a subordinate body to be entrusted only withroutinematters
of daily administration. Rule 8 (3) (m) of the U.N.P. ConstitutionexpresslyempoweredtheNationalExecutiveCommittee
(NEC) to vest all or any of its powers and dutieswhetherexpresslyenumeratedornotontheWorkingCommittee.The
delegation in question does not purport to be permanent or irrevocable, and thus there is no denudation of its powers bythe
Executive Committee. Its size the difficulty of having frequent meetings,andthecomplexityofthedecision-making
process in a large body are matters which the Executive Committee could legitimately have taken intoaccountindelegating
its powers to a smaller Working Committee selected from among its own members. The Executive Committee was authorised toand
did validly vest in or delegate to the Working Committee its disciplinary powers under Rule 8 (3) (m). The WorkingCommittee
had jurisdiction to take disciplinary action against the petitioners.
Our Constitution confers primacy to the political party as against the individual M.P. The party carries the mandateofthe
electors and in turn gives a mandate to the M.P. The exercise of the rights of the petitioners quaMP'sissubordinateto
the requirements of party discipline and their freedom to agitate mattersinpublicisconstrainedbyreasonoftheir
obligations to the party which they have freely undertaken to honour. Issues inregardtoleadershipandthesystemof
government are matters of prime importance to the party and dissentingviewsshouldhavebeenthesubjectofinternal
discussion before being ventilated outside party circles. Theinternaldiscussionprocedurewasmandatoryevenifthe
internal decision might not be binding. A member is not reduced to the position of a mere cog in the party machine.Someof
his constitutional functions are essentially discretionary and quasi - judicial, someevenjudicial.Thusarticle4(c)
enables Parliament to exercise the judicial power of the people in regard to parliamentaryprivilege.
Any member of Parliament was entitled to sign the notice of resolution intheexerciseofhisindependentjudgmentand
discretion. Signing a notice intended to be presented, and in fact presented to Parliament in respect of a matter withinits
province is a proceeding in Parliament. Freedom of speech (and thought,conscienceandexpression)clearlyembracesthe
people's right to know, the wide dissemination of information and opinions, the public discussion of allmattersofpublic
concern and criticism, however strongly worded,andeveniffoolishandwithoutmoderation,ofpublicmeasuresand
government action, all this, of course, by peaceful means and without incitement to violence. However this doesnotentitle
the petitioners to relief because they are also charged with the failure to raise these matters internally.
Per Fernando, J.
" The rules of a Political Party are not a mere matter ofcontractbutthebasisoftheexerciseofthefreedomof
association recognised by Article 14 (1) (c).
One of the conditions on which party members agreed to exercise this fundamental right was by mutuallyacceptingreciprocal
obligations placing limitations on the exercise ofthefreedomofspeechbyeachother,intheinterestsoftheir
The ground of expulsion is the signing of the resolution without first raisingitwithinthepartyorganisationorthe
government Parliamentary Group.
As the petitioner in S.C. (Special) 5/91 and the petitioner in S.C. (Special) 8/91 lied and deceivedthecabinetandhave
offered no explanation in their affidavit and none is found in the documents their misconduct wasgraveandexpulsionwas
intrinsically a proper penalty. Expulsion of these two petitioners was valid.
The allegations against the District Judge of Colombo should be expunged.
Held further (Fernando, J. dissenting).
The conduct of the petitioners including senior Parliamentarians in disclosing in public theseriousallegationscontained
in the resolution cannot be construed as bona fide, and gives credence to the allegation that they used the resolutionasa
cover to cause insult and injury to the character, integrity and ability of the leaderofthepartyinhiscapacityas
President of the country. Such contumacious conduct constitutes indiscipline inthepartyunrelatedtotheexerciseof
The petitioner's rights were not materially affected by the order of expulsion. All the issues here relate tolegalmatters
arising upon admitted facts. The subsequent hearing in the Supreme Court is in substance the right to an antecedenthearing.
No injustice was caused to the petitioners by their being deprived of anopportunitytogiveanexplanationbeforethe
Working Committee. The expulsions had not yet taken effect and their validity is to be decided by the Court. Therehasbeen
no violation of the rules of natural justice.
The allegations of bias and mala fides have not been substantiated.
The expulsions of the petitioners in cases S.C. (Special) 4/91, 6/91, 7/91,9/91,10/91and11/91werealsovalidand
Cases referred to
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2. Shanmugam v. Commissioner for Registration of I and P Residents (1962) 64 NLR 29, 33.
3. Young v. Fife Regional Council (1986) Scots LT 331.
4. General Medical Council v. U. K Dental Board  Ch 41.
5. Bromley London Borough Council v. Greater London Council  1 All ER 129, 131-2, 165, 166, 182.
6. Secretary of State for Education and Science v. Tameside Metropolitan Borough  3 All ER 66.
7. R v. Waltham Forest LBC ex parte Bashen (1987) 3 ALL ER 671, 674, 676, tin.
8. R v. Greenwich LBC ex P. Lovelace & Fay [199113 All ER 511, 515, 517, 523, 525.
9. Joseph Perera v. A. G. SC 107-109/86, SC Minutes of 25.5.87.
10. New York Times v. US (1971) 403 US 713.
11. Dissanayake v. Sri Jayawardenepura University  2 Sri LR 254.
12. Shaughnessy v. US (1953) 345, US 206, 224.
13. McNabb v. US (1943) 318 US 332, 347.
14. Cooper v. Wandsworth Board of Works (1863) 14 CB (N.S. 180, 194).
15. Mersey Docks (etc) Trustees v. Gibbs (1866) LR 1 HL 93, 110.
16. Wood v. Woad (1874) LR 9 Ex. 190, 196.
17. Byme v. Kinematograph Renters Society Ltd.  1 WLR 762, 784.
18. Franklin v. Minister of Town and Country Planning  AC 87.
19. Nakkuda Ali v. Jayaratne (1950) 51 NLR 457.
20. R v. Metropolitan Police Commissioner ex parte Parker  1 WLR 1150.
21. Ridge v. Baldwin  AC 40, 130.
22. Hall v. Manchester Corp. (1915) 84 LJ Ch 732.
23. Hopkins v. Smethwick Local Board of Health (1890) 24 Q.B.D. 712, 714-715:
24. Urban Housing Co. Ltd. v. Oxford City Council  Ch 70, 85.
25. Board of Education v. Rice  AC 179, 182.
26. R v. Gaming Board for G. B.  2 QB 417, 430.
27. Schmidt v. Home Secretary  1 All ER 904, 909.
28. A. G. v. Ryan  AC 718, 727.
29. Cooper v. Wilson  2 KB 309, 344.
30. Kanda v. Federation of Malaya  AC 322, 337.
31. Chief Constable (North Wales) v. Evans  3 All ER 141, 143, 146, 147, 154, 155.
32. Vdyodaya University v. Silva (1964) 66 NLR 505.
33. Durayappah v. Fernando (1966) 69 NLR 265.
34. Jeffs v. N. Z. Dairy Products (etc) Board  3 All ER 863, 870.
35. Bamard v. National Dock Labour Board  2 QB 18. 23,  1 All ER 1113, 1118.
36. Vine v. National Dock Labour Board (1956) 3 All ER 939, 943.
37. Lawlor v. Union of Post Office Workers  1 All ER 353, 362.
38. Bum v. National Amalgamated Labourers Union  2 Ch 364.
39. Abbott v. Sullivan  1 KB 189, 198.
40. Lee v. Showmen's Guild  2 QB 329, 342.
41. Taylor v. National Union of Seamen  1 WLR 532.
42. Annamunthodo v. Oilfield Workers Trade Union (1961) 3 All ER 621, 624 - 625.
43. Stevenson v. United Road Transport Union  3 All ER 29, 38.
44. lnnes v. Wylie (1844) 1 Car & Kir. 257, 263.
45. Andrews v. Mitchell  AC 78, 81.
46. Fisher v. Keane (1878) 11 Ch. D 353, 362.
47. Labouchere v. Earl of Wharancliffe (1879) 13 Ch. D. 346, 352.
49. Gray v. Allison (1909) 25 TLR 531, 533.
50. R v. Saddler's Company ex parte Dinsdale (1863) 10 HLC 404, 423, 439, 456, 461.
51. Johnson v. Jockey Club of South Africa (1910) WLD 136.
52. D' Arcy v. Adamson (1913) 29 TLR 367, 368.
53. Graham v. Sinclair (1918) 25 CLR 102, 107.
54. Dawkins v. Antrobus (1881) 17 Ch. D. 615, 630 (also No. 48)
55. Abbott v. Sullivan  1 KB 189, 198.
56. Edward v. Sogat  Ch 591, 606.
57. R v. Archbishop of Canterbury (1859) 1 E. & E. 545.
58. Capel v. Child (1832) 2 C & J 558.
59. Bonaker v. Evans (1850) 16 QB 162.
60. R v. North Ex p. Oakey  1 KB 491.
61. Bentley's Case R v. University of Cambridge (1723) 1 Str. 557.
62. Re Pergamon Press Ltd.  Ch 388, 399.
63. University of Ceylon v. Fernando (1960) 61 NLR 505.
64. R v. Aston University Senate ex p. Roffey  2 QB 538.
65. Glynn v. Keele University  1 WLR 487,  2 All ER 89.
66. Herring v. Templeman (1973] 3 All ER 569, 587.
67. Selvarajan v. Race Relations Board  All ER 12, 19.
68. McInnes v. Onslow - Fane  1 WLR 1520, 1528.
69. Bates v Lord Hailsham  1 WLR 1373, 1378.
70. Pearlberg v. Varty  1 WLR 534, 547.
71. Ex p. Parker  1 WLR 1150.
72. Buckoke v. Greater London Council  Ch 655.
73. R v. Hull Prison Visitors ex p. St Germain  QB 425.
74. General Medical Council v. Spackman  AC 627, 644.
75. White v. Redfern [1879) 5 QBD 15.
76. R v. Davey  2 QB 301.
77. John v. Rees  Ch. 345, 402 2 WLR 1294, 1332, 1333, 1335.
78. Heatley v. Tasmanian Racing (etc) Commission (1977) 137 CLR 487.
79. R v. Secretary of State for the Environment ex p. Brent LBC  3 All ER 321, 354.
80. A. G. of Hong Kong v Ng Yuen Shiu  2 All ER 346, 350.
81. O' Reilly v. Mackman  3 All ER 1124, 1126, 1127.
82. Civil Service Unions Case  AC 374.
83. Cinnamond v. British Airports Authority  2 All ER 368, 374.
84. Malloch v. Aberdeen corporation  2 All ER 1278, 1283, 1294, 1297, 1298.
85. Maradana Mosque v. Mahmud (1966) 68 NLR 217, 224.
86. Gaiman v. National Association for Mental Health  2 All ER 362, 374, 376, 381.
87. Secretary of State for Trade v. Hoffman - La Roche  3 All ER 945.
88. Ward v. Bradford Corporation  115 SJ 606 70 LG.R 27.
89. Dimes v. Grand Junction Canal (1852) 3 HLC 759.
90. R v. Sussex Justices  1 KB 256.
91. Hannam v. Bradford City Council  2 All ER 690, 694, 700.
92. Eckersley v. Mersey Docks and Harbour Board  2 QB 667.'
93. R v. Essex Justices  2 KB 475.
94. R v. Camborne Justices  2 All ER 850.
95. R v. Nailsworth Justices  1 WLR 1046.
97. Simon v. Commissioner of National Housing (1972) 75 NLR 471.
98. Law v. Chartered Institute of Patent Agents  2 Ch. 276, 290.
99. Metropolitan Properties v. Lannon  3 All ER 304, 310, 314.
100. R v. Leicestershire Fire Authority Ex. p. Thompson (1978) 77 LGR 373, 379.
104. Frome United Breweries v. Bath Justices  AC 586.
105. R v. Hendon Rural District Council  2 KB 696.
106. R v. Altrincham Justices Ex p. Pennington  2 All ER 78, 82.
107. Roebuck v. National Union of Mineworkers  1 LGR 676.
108. Young v. Fife Regional Council (1986) S.L.T. 331, 334. (same as No. 3)
109. Blackpool Corporation v. Locker  1 All ER 85.
110. Ruth v. Clerk (1890) 25 QBD 391.
111. Yapa Abeywardena v. Harsha Abeywardena SC 51/87 (SPL) SC Minutes of 18.01.1988.
112. Rati Lal v. State of Bombay AIR 1954 SC 388.
113. Calder v. Bull (1798) 3 US 386, 399.
APPLICATION under and in terms of Article 99 (13) (a) of the Constitution , challenging expulsion from the United National
H. L. De Silva, PC, M. L. M. Ameen, PC, Neville De J. Seneviratne, R. K. W. Goonesekera, E D. Wickramanayake, Ranjan
Gooneratne, S. L. Gunesekera, Gomin Dayasiri, Neil Dias, Ranjith Fernando, Mahendra Amarasekera, Dhamsiri Fonseka, T. M. S.
Nanayakkara, S. T. Jayanaga, Nigel Hatch, Upul Jayasooriya, Mangala Ranaraia, Nalin Dissanayake, Ian Fernando and H. B.
Maddumabanda for Petitioners in all eight applications.
K. N. Choksy, P.C., S.C. Crosette - Thambiah, Daya Pelpola, S. J. Mohideen, D. H. N. Jayamaha, Lalith W. Jayawickrema, A. L.
Brito - Mutunayagam, Ronald Perera and Lakshman Ranasinghe for 1 to 4 respondents in all eight applications.
No appearance for the 5th respondent.
December 03, 1991.
Eight Members of Parliament applied to this Court, by petitions intermsofArticle99(13)(a)oftheConstitution,
challenging their expulsion from the United National Party (" the Party "), a recognized political party.Thequestionsof
fact and law involved are, except in one respect, identical, and the parties agreed that all eightpetitionsbeheardand
determined together. It was further agreed that the facts were not seriously in dispute, and that any contestedquestionof
fact should be determined on the basis of the severalaffidavitsfiled,withouttheneedfororalevidenceorcross
examination of deponents.
1. THE FACTS
In late August 1991 a sudden crisis occurred in the Party, when it became known that notice had been givenofaresolution
in terms of Article 38 (2) (a) of the Constitution by more than one-half of the whole number of MembersofParliament.The
petitioners have produced a copy of this notice it is undated, does not contain the names, signatures orinitialsofthe
signatories, and is not authenticated in any way the Respondents have not denied that it is indeed a copyofthenotice,
and so I accept it as a correct copy. The requisite number of signatures could not have been obtainedunlessPartyMembers
also were included. The eight Petitioners admittedly signed this notice when, we have not been told. It is said thatforty
Party Members signed, but subsequently (after 28.8.91) some claimed that they had not signed, or had signedthroughmistake
or misrepresentation, and others withdrew or revoked their signatures. However, it is unnecessary for metodecideanyof
these intriguing questions as to the number of signatories, the validity of the signatures and of the notice itself, andthe
entertainment of the notice by the Speaker. It is clear that this notice was the result of a secret campaignforsometime
prior to August 1991 by Opposition Members of Parliament, the Petitioners, and some otherGovernmentMembers.Itisalso
admitted that although the notice refers to serious criticisms of the President's conduct from the inceptionofhisperiod
of office, at no stage had the Petitioners expressed any criticism or dissentwhatsoever,eitherpubliclyorwithinthe
inner councils of the Party. Likewise, they had expressed no criticism or reservation regardingtheExecutivePresidential
system embodied in the 1978 Constitution, with a view to its abolition or reform or otherwise, except that,accordingtoa
newspaper report produced by the Respondents, Mr. Gamini Dissanayake (the PetitionerinS.C.4/91)stated(inSeptember
1991) that in 1989, at a joint meeting of trade unions, he had advocated the abolition of the ExecutivePresidentialsystem
for the solution of the problems of the country, and that the President was aware of this. The notice was deliveredto.the
Speaker on 27.8.91, or perhaps shortly before. By a letter dated 28.8.91 the SpeakerinformedthePresidentthathehad
entertained a resolution complying with Article 38 (2) (a) and (b). Neither this letter nor a copyhasbeenproduced,but
another document reproduces its contents, as to which there is thus now no dispute. It.wouldseemthatthisletterwas
originally dated 27.8.91, and then altered to 28.8.91. A copy of the noticeitselfwasnotsenttothePresident.The
Speaker's letter was received by the President whilst a Cabinet meeting wasinprogress twoPetitioners(MessrsG.M.
Premachandra and Lalith Athulathmudali) being then Cabinet Ministers, were present. A vote ofconfidenceinthePresident
was called for, and those present, including those two Petitioners, unanimously expressed their support for the Presidentby
a show of hands. However, it later became known that they supported thenotice,andtheyresignedfromtheCabineton
According to a newspaper report on 31.8.91 ofaPressConferenceheldon30.8.91,atwhichMessrsPremachandraand
Athulathmudali were present,
" Asked how it was possible for Messrs Athulathmudali and Premachandra to subscribetotheunanimousexpressingof
confidence in President Premadasa at last Wednesday's cabinet meeting, Mr. Athulathmudali said themotionhadbeensigned
after the cabinet meeting. "
Another newspaper account of a farewell speech by Mr. Athulathmudali to his Ministry staff a day or twolater,quotes
him as having said that he did not sign the notice while he was in the Cabinet, but only after resigning.Accordingtoyet
" Mr. Athulathmudali said that at the Cabinet meeting there was a show of hands. This happenedsubsequently,hesaid
and added 'there is no inconsistency between raising your hand and then offering to resign'."
These reports have not been contradicted. On being asked whether Mr. Athulathmudali signed the notice beforeorafter
the vote of confidence, learned President's Counsel, after speaking to him, stated to us that he had no dear instructionson
On 30.8.91 the President (who was precluded by Article 70 (1) (c) from dissolving Parliament " aftertheSpeakerhas
entertained a resolution complying with ' Article 38 (2) (a) and (b)) prorogued Parliament until 24.9.91.
Between 30.8.91 and 6.9.91 the Petitioners commenced a public campaign, reiterating the principalallegationscontainedin
the notice of resolution, as well as other criticisms of the President and appealing for the abolition (andnotmerelythe
reform) of the Executive Presidential system and the restoration of Parliamentary DemocracymakingtheExecutivedirectly
responsible to Parliament. This campaign also revealed that Opposition Members had been associated withthePetitionersin
regard to the notice of resolution, and that the Petitioners desired the widest possible publicity for their views.
On 5.9.91, the Petitioners, anticipating disciplinary action by the Party for expulsion, instituted actions intheDistrict
Court of Colombo for declarations and injunctions on 6.9.91 they were refused relief. Before they could go to the Courtof
Appeal, the Disciplinary Committee of the Party met the same evening, and recommended expulsionameetingoftheWorking
Committee followed immediately thereafter, and a resolution for the expulsion ofalleightPetitionerswaspassed.That
resolution recited that the President is ex officio the Leader of the Parry that the eight Petitioners wereboundbythe
Party Constitution and had been elected to Parliament on the Party list that in the DistrictCourtproceedingstheyhad
admitted signing the notice of resolution for the removal of the President and then set out the grounds of expulsion thus:
AND WHEREAS the signing. of the aforesaid Resolution, together with several Members of the Opposition in Parliament, is
an act of betrayal of the Party membership and the confidence placed by thepeopleinthePartyanditsleadershipat
AND WHEREAS after the Hon. Speaker had informed the President he had entertained the said Notice of Resolution underArticle
38(2), Messrs G. M. Premachandra and Lalith Athulathmudali had in addition deliberately misled and deceivedtheCabinetof
Ministers on the 28th of August, 1991, into believing that they were ignorant of and were not associated with thenoticeof
the Resolution, by joining the rest of the Members of theCabinetinpassinganunanimousVoteofConfidenceinthe
President by a show of hands individually,
AND WHEREAS the aforesaid eight members have signed the said Notice of Resolution without any prior intimationtothe
Party or raising or discussing the same within the Party organization or the Government Parliamentary Group,
AND WHEREAS the said eight members had at the General Election of February 1989 sought and obtained nominationonthe
Lists of the United National Party and the voters had elected them to Parliament on the basisandunderstandingthatthey
are members and candidates of theUnitedNationalPartywhoaccepttheLeadershipofthePartyandtheExecutive
Presidential system of Government, and are therefore bound to adhere tothePartyManifestoandPartyConstitutionand
policies whilst being representatives of the Party in Parliament,
AND WHEREAS it has been and continues to be the principle and policy of the United National Party thattheGovernment
of the country should consist of an Executive President elected by the people and an elected Parliament,
AND WHEREAS the aforesaid members have since the giving of the said Notice ofResolutiontotheSpeakerrepeatedly
announced in public that they are against the elected Executive Presidential system, and have also used this asacoverto
cause insult and injury to the character, integrity and ability of the Leader of the Party in his capacityasPresidentof
AND WHEREAS the aforesaid acts have all been done by the said eight memberswithoutfirstraisingthesaidissues
within the Party organizationortheGovernmentParliamentaryGroupasisrequiredbythePartyConstitutionand
AND WHEREAS the Disciplinary Committee has on the basis of the aforesaid recommended to the WorkingCommitteeofthe
Party that disciplinary action be taken againstthesaideightmembersfortheirflagrantconductinviolatingthe
Constitution, conventions, policies and procedures of the Party,
AND WHEREAS the Working Committee having considered the aforesaid conduct and actions of the said eight members and the
recommendation of the Disciplinary Committee has come to the conclusion that these membershavemanifestlyandflagrantly
and in disregard of Party discipline, duties and responsibilities, breached the conditions of membership of the Party,acted
contrary to the principles and policies of the Party, repudiated and violated the Constitution and conventions of theParty,
and brought the Party and its leadership into disrepute and held it up to public ridicule.
The Working Committee accordingly resolves that the aforesaid eight members be expelledfromthemembershipofthe
United National Party with effect from 6th September, 1991.
The Working Committee further resolves that the General Secretary ofthePartynotifiestheSecretaryGeneralof
Parliament and the Commissioner of Elections of the expulsion of the aforesaid eight members.
On 7.9.91, the National Executive Committee unanimously " endorsed " that decision. All thiswaswithoutanynotice
whatever to the Petitioners. By letters dated 9.9.91 each of the Petitioners was informed thathehadbeenexpelledfrom
membership of the Party, with effect from 6.9.91, by a decision of the Working Committeenoreferencewasmadetothe
National Executive Committee's " endorsement " of that decision a copy of the expulsion resolution was also sent.
Thereafter the Petitioners continued their public campaign. Although it has been submitted thatthePetitionerswere
only seeking the reform of certain anomalies in the Executive Presidential system, the material before usestablishesthat,
throughout, the issue presented to the public was " Executive Presidency versus Parliamentary Democracy." Parliamentmeton
24.9.91 on 8.10.91 the Speaker announced to Parliament that, having inquired into the matter, he was of the viewthatthe
notice of resolution did not have the required number of valid signatures and hence could not be proceeded with.On4.10.91
these petitions were filed.
2. ALLEGATION OF BIAS AGAINST DISTRICT JUDGE
The petition in each case, makes reference to the unsuccessful actions filed in the DistrictCourtofColomboon5.9.91.
Paragraph 21 of the petition, and paragraph 22 of the affidavit (in S.C. (Special) No. 4/91), filed in this Court,referto
a speech made by the District Judge of Colombo, as President of the Judicial Service Association, attheAnnualConference
of the Association, welcoming the President. In the course of that speech, the District Judge conveyedtheappreciationof
the members of the minor judiciary of the practice of promoting senior judges of the minor judiciary to the HighCourt,and
of steps taken in relation to the welfare and conditions of service of the members of theminorjudiciary,makingspecial
mention of housing schemes and cars. Such action, he said, was in recognition of the fact that the judiciary is avitaland
integral part of the state, especially in maintaining peace and order.Theseissueswereinnosensepersonaltothe
District Judge himself, but related to matters of legitimate interest and concern to all members of the Association.Itwas
a formal and open expression of gratitude for the provision of facilities which did not unduly favourtheminorjudiciary,
but which enabled at least the majority of them to enjoy facilities comparable to public officers. He assumedthatjudicial
officers may, like Oliver Twist, ask for more and may give thanks for what they get.
However each Petitioner proceeded to allege that he " has reason to believe in all the circumstances thatjusticewas
not seen to be done in his case "this was re-iterated in counter-affidavits dated26.10.91.LearnedPresident'sCounsel
concluded his submissions on behalf of the Petitioner on 4.11.91 without in any way relying onthisallegationtosupport
the prayer for relief under Article 99 (13) (a).
These applications are not by way of appeal from, or review or re-consideration of, the proceedingsororderinthe
District Court. The insinuation of partiality is in no wayrelevanttotheissuesoffactandlawarisinginthese
applications. We are therefore not called upon in any way todeterminewhetherthatallegationwasjustified,oreven
whether there was a reasonable suspicion of bias requiring the District Judge to disqualify himself. Indeed, ifwewereto
consider whether there was substance in that allegation, we would be doing so in proceedings to which the DistrictJudgeis
not, and could not have been, a respondent, andwewouldtherebybedenyingtohimwhatthePetitionersclaimfor
themselves, namely the protection of the audi alteram partem rule.
In these circumstances we indicated to learned President's Counsel on 4.11.91 that the pleadings filedinthisCourt
should not have contained such an obviously irrelevant allegation of bias, and one based on such tenuous grounds thatthis
Court could not ignore the aspersions cast on a judicial officer, of an inferior court but nevertheless an integralpartof
the judiciary of Sri Lanka and that in the circumstances it seemed right that allegation should no longer bepermittedto
remain on the record. Learned President's Counsel wished to have time for consideration. On 13.11.91, attheconclusionof
his submissions in reply, he informed us that the Petitioners, while re-affirming that they suffer a deep sense ofgrievance
that they were denied justice when they sought relief in theDistrictCourt,neverthelessrecognisedtheforceofour
observations that no finding was possible on that allegation,andwhilereservingtheirrighttotakeupthematter
elsewhere, desired to withdraw the offending averments.
These proceedings involve important questions of law as to the status, rights and powers oftheExecutivePresident,
vis-a-vis Parliament and Members of Parliament,andthePetitionersseektovindicatetherightsandprivilegesof
Parliament and its Members. When the jurisdiction of this Court is invoked for such purposes,itismorethanordinarily
important that nothing should be done unfairly to impair the independence, andthereputation,ofthejudiciaryorany
section of it. Unsuccessful litigants may labour under a sense of grievance, in respect of orders which are eitherwrongor
believed to be wrong they have the right to avail themselves of all such remedies as the law allows, but theyarenotat
liberty to use judicial proceedings recklessly to scatter allegations of partiality. Neither the Petitioners nor theirlegal
advisers should have permitted this base allegation to be made, and persisted in. It does not redound to the credit ofthose
professing to enhance democratic institutions and practices in Sri Lanka, that there was not evenaperfunctoryexpression
of regret for the injury to the judiciary and the officer concerned. However,astheallegationwasmadeinrestrained
terms, in this instance we merely direct the Registrar, to expunge the offending passages from the record, namely
(a) the entirety of paragraph 21 of the petition dated 4.10.91, and paragraph 22 of the supporting affidavit, inS.C.
(Special) No 4/91 and
(b) the last sentence of paragraph 9 of the counter-affidavit dated 26.10.91,
as well as the corresponding passages in the other seven cases.
3. THE ALLEGATIONS AGAINST THE PETITIONERS
Learned President's Counsel for the 1st to 4th Respondents submitted that the Petitioners were expelled not forsigningthe
notice of resolution, or for advocating the abolition of the Executive Presidential system, but fortheirfailuretogive
prior intimation to the proper Partyorganisations(suchastheExecutiveCommittee,theWorkingCommitteeandthe
Government Parliamentary Group). Further, after signing that notice, they hadusedtheircampaignagainsttheExecutive
Presidential system as a cover to cause insult and injury to the character, integrity and ability of the Leader of theParty
in his capacity as President. In addition, Messrs Premachandra and Athulathmudali had deceived the Cabinet on 28.8.91.
The Petitioners, however, construe the expulsion resolution differently, and say it contains five distinct charges:
1. In regard to the notice of resolution
(a) That the act of signing, together with Opposition Members,constitutedabertrayaloftheParty boththe
membership and the leadership
(b) That Messrs Premachandra and Athulathmudali had deceived the Cabinet into believing that they werenotassociated
with the resolution and
(c) That the notice had been signed without prior intimation or discussion within the Party organisations.
2. In regard to the Executive Presidential system
(a) That having obtained Party nomination, and having been elected on thebasisoftheiracceptanceoftheParty
Leadership and the Executive Presidential system, and being bound by the Party Constitution, manifesto, principlesand
policies (one principle and policy being that government should be by an Executive President elected by the peopleand
an elected Parliament), they had repeatedly announced in public their opposition to this Executive Presidential system,
without first raising the said issues within the Party organisations or the Government Parliamentary Group and
(b) That they had used this as a cover to cause insult and injury to the character, integrity and ability of the leader
of the Party in his capacity as President.
Learned President's Counsel for the Respondents sought to persuade us that the gravamen of the charge was the lackofprior
intimation and internal discussion - which might have transformed the winter of theirdiscontentintoglorioussummerof
Party unity. This was principally on the basis that the eighth and ninth recitals in the expulsionresolutionsetoutthe
recommendation of the Disciplinary Committee and the decision of the Working Committee that theseventhrecitalcontains
the operative charge namely the failure to raise those issues internally and that the firstsixrecitalsmerelystate
other ingredients (alternative or cumulative) relevent to that charge. Since the seventhrecitalrefersto"all"the
aforesaid acts there is some justification for regarding it as referring to all the preceding recitals not beingacharge
in a criminal proceeding, a high degree of precision is not expected. However such a construction results in someanomalies.
That recital is not relevant at all to the second recital it is unnecessarily repetitive ofthethirdrecital itis
quite inappropriate to the allegation of causing insult and injury. Further, the firstrecitalisanindependentcharge,
complete in itself: that signing the notice, together with Opposition Members, was an act of betrayal.Theseventhrecital
could therefore be more appropriately read as applicable only to' the sixth, though not to the allegation ofcausinginsult
and injury.or perhaps even as only an aggravating element. Before deciding whichofthesecompeting interpretationsis
correct, it is relevant to see how the parties understood that resolution. The Petitioners averred intheirpetitionsthat
they could not legally be expelled on the ground that they signed the notice of resolution, setting outseveralindependent
contentionsthat the act of signing was not a violation of the PartyConstitution,conventions,policies,principlesor
discipline that Party rules cannot override the Constitution that they had a Constitutional right and power tosignthe
notice that the act of signing was not liable to be questioned by virtue of Parliamentary privilege and that theactof
signing was in the exercise of the fundamental rights of freedom of thought, conscience and speech. They saidnothingabout
their failure to raise the matter internally perhaps they had nothing to say in exculpation,butpossiblytheydidnot
consider that to be the essence of the charges. It is of some relevance that when these petitions were called on 24.10.91to
determine certain procedural questions, one of the matters in issue was formulated as " whether the signingofthe[notice
of] resolution under Article 38 (2) constitutes a ground for expulsion ", and the lack of prior internal discussionwasnot
The Respondents replied thus in each case
"31. ...........if the Petitioner had any complaint or allegations against theLeaderofthePartyordesiredto
advocate any change in the policy of the Party regarding the Executive Presidential system, he was obliged and bound to
first raise the same within the Organisation of the Party and abide by the decision of the Party in regard thereto. The
Petitioner at no stage raised within the Party or at anymeetingoftheGovernmentParliamentaryGroup......any
complaint against the Leader of the Party or against the Party's policy of an Executive Presidential System.' '
32. (a) The Petitioner nevertheless was a signatory to a Notice of Resolution under Article 38(2).............for
the removal of the Party Leader from the Office of President of Sri Lanka. ThesaidNoticeofResolutioncontained
serious allegations of a grave nature ............. It also alleged mental infirmity against the Leader of the Party:
(b) Subscription to the said Notice of Resolution containing the said allegations by a member of the Party and ofthe
Government Party Group carries with it by necessary implication that the President is a person unfit to betheLeader
of the United National Party."
"33. The Petitioner had signed the said Notice of Resolution together with inter alia several Members of the Opposition
"34.(a) ............the admitted signing of the said Notice of Resolution by the Petitioner was an act ofbetrayalof
the Party Leadership and membership and was aviolationoftheParryConstitutionandPartyresponsibilityand
discipline, justifying the expulsion of the Petitioner from the Party.
(b) .......... the Petitioner had no right to subscribe to such a Notice of Resolution independently of his obligations
as a Member of the Party and of the Government Parliamentary Group.
(c) In any event, the Petitioner was in violation of the Party Constitution, discipline and responsibility in doingso
without first raising the matter within the Party or the Government Parliamentary Group."
These averments appear to place the act of signing the notice in the forefront of the case againstthePetitioners
the failure to raise the matter internally was - as indicated by the words " in any event " - an additional, andsubsidiary,
charge. This impression is reinforced by the Respondents' explanation for nottakingsimilaractionagainstotherParty
Members who signed the notice:
"24. (a) ......... all remaining 116 members of the Government Parliamentary Group signed documents dated30thAugust
1991 and 2nd September 1991 disassociatingthemselveswiththeNoticeofResolutionunderArticle38(2)ofthe
Constitution and expressing their opposition to such Resolution. These documents were presented in personbythesaid116
members to the Honourable
Speaker on 3rd September 1991. Accordingly no disciplinary action was taken against any other member who may have signedthe
said Notice of Resolution. At the meeting of the Working Committee held on 15thOctober1991theCommitteerequiredthe
Disciplinary Committee to consider and make recommendations in regard to disciplinary action if any against three membersof
the Government Parliamentary Group who have recently associated themselves in the political activities of the Petitionerand
the other seven members."
The stress is on disciplinary action for " signing "not on the absence of prior internal discussion. These objections
were filed on 23.10.91. The Petitioners were required to file their counter-affidavits by 28.10.91, aftergivingnoticeto
the Respondents by 27.10.91. While denying paragraphs 24 (a), and 31 to 34, they averred that the Party wasnotirrevocably
committed to the Executive Presidential system, and that " this question was not raised[internally]forthereasonthat
there did not exist a degree of freedom necessary to raise questions which would involve a curtailment of Presidentialpower
"this they did not elaborate.
It is thus likely that there was some confusion in the minds of members of the Working Committee. Theminutesofthe
Working Committee show that the 2nd Respondent, as General Secretary, made a fair and comprehensive report in respect ofthe
proceedings and recommendations of the Disciplinary Committee with, however, that same element of uncertainty. Hereferred
succinctly to the District Court proceedings and order, the Petitioners' admissionsinregardtosigning,andthevery
serious nature of the accusations in the notice to the Petitioners' lawyers' assertion that MembersofParliamenthada
Constitutional right to sign such a resolution to two Petitioners having misled the Cabinetandtothepubliccampaign
against the Presidential system. The minutes record that " he further stated"thatthePetitionershadnotpreviously
raised these matters internally he then stressed that this was a breach of discipline. It was notindicatedthatsigning
the notice was not a distinct charge. The findings or views of the Disciplinary Committeearealsonotspecificonthis
point but it " was of the view that no inquiry was necessary because the fact of signing of the impeachment Resolutionwas
admitted." The President " stated that inasmuch as the Notice of Resolution...... was directed against him, he didnotwish
to participate in this discussion "earlierhehadnottakenpartinthediscussionandrecommendationsofthe
Disciplinary Committee " in view of the Impeachment Resolution."
Learned President's Counsel for the Respondents was himself a member of the Working Committee and participatedinthe
proceedings of 6.9.91. On that day too his view must have been that thegravamenofthechargewasthelackofprior
internal discussions. That opinion may have been sharedbyothers.Butthatpositiondidnotclearlyemergeinthe
Respondents' objections and the 2nd Respondent's supporting counter-affidavit.
It is therefore reasonable to infer that the 2nd respondent as well as other members of both Committees did thinkthat
one of the main charges was the act of signing the notice. Had attention being focussed on this matter, itmighthavebeen
determined, after discussion, that the issue was not the fact of signing. But that did not happen. It appears to me thatthe
better view of the expulsion resolution is that one of the grounds for expulsion was the fact of signing. That gives riseto
serious questions. Could some members have taken the view that the resolution contained very serious accusations, and thata
Party member who signed it was guilty of serious misconduct, warranting expulsion ? If so, could theyhaveproperlyformed
such a view where the text of the notice was not available ? Had those members been told that was not thecharge,andthat
the real allegation was the failure to resort to internal procedures, would they have considered it appropriate toimposea
lesser punishment - such as a brief suspension to be reviewed after the resolution was taken up in Parliament?Thismeans
however that one does not really know whetherthePetitionerswereexpelledforsigningtheresolution,orforthe
procedural lapse. Upon consideration of the resolution and the pleadings, however, I am compelled to treat theexpulsionas
involving five distinct charges.
4. CAN THE WORKING COMMITTEE EXPEL A MEMBER ?
Rule 8 of the Party Constitution establishes a National ExecutiveCommitteeconsistingofexofficiomembers(suchas
Members of Parliament) and members elected by the (annual) Party Convention It presently hasover2,500members.Itis
required to meet at least once in every six months. It is " theadministrativeauthorityoftheParty,subjecttothe
directions and control of the PartyConvention,anditsdecisionsshallbefinal,subjecttoreviewbytheParty
Convention." Rule 8 (3) provides that " its duties shall include the following." Having enumerated variousduties,suchas
conferring with the Parliamentary Party, conveningPartyconventions,proposingamendmentstothePartyConstitution,
organising election funds, adjudicating on disputes betweenPartyorganisations,appointingNominationBoardsandsub-
Committees for elections, and appointing an auditor and certain officers, Rule 8 (3) setsoutthreemattersrelevantfor
present purposes -
(a) To enforce the Constitution, Standing Orders and Rules, and the Code of Conduct oftheParty,andtotakeany
action it deems necessary for purpose, whether by way of disaffiliation or cancellation of an organisation or expulsion
or suspension of any individual member or office bearer from office orotherwise.TheNationalExecutiveCommittee
shall have power to take disciplinary action against any member, Balamandalaya, Organisation or Association in a manner
suitable in the circumstances of each case and mete out any punishment thereof [sic]. Any such action shall be reported
to the next Annual Convention of the Party.
(b) To see that all its officers and members conform to the Constitution and Standing Orders of the Party.
(c) Leader of the Party shall appoint a Working Committee from the National Executive Committee consisting ofhimself,
Deputy Leader and all other office bearers and any other members not exceeding fifty (50). The Working Committeeshall
have the authority to exercise the powers and functions vested in it by the National Executive Committee."
The last of these is in no sense a "duty" of the Executive Committee, but is an independent provision.
There can be no dispute that the Executive Committee has the "duty" to enforcethePartyConstitutionandrelevant
rules, and the "duty" as well as the "power" to take disciplinary action againstmembers,includingexpulsion,suspension
and other punishments.
Learned President's Counsel for the Petitioner contends that the disciplinary jurisdiction of theExecutiveCommittee
cannot be exercised by the Working Committee, for several reasons
1. The Executive Committee is a large, elected body, representative of various sections of the Party the WorkingCommittee
is a small body, appointed by the Leader of the Party from among the members of the Executive Committee, andtherefore
not truly representative of the Party. The plenary power of AdministrationwasvestedintheExecutiveCommittee,
including punitive powers of expulsion. The Rules as a whole do not manifest an intentionthatthesepowersmaybe
transferred or delegated to any other body.
2.Rule 8 (3) (m) appears to authorise the Executive Committee to " vest " powers and functions intheWorkingCommittee.
It makes no mention of the procedure to be followed in regard to such " vesting." However, "vesting"morethan"
delegation ", and amounts to an abdication, renunciation divesting of a power by the Executive Committee if such a"
vesting " does occur there will be a Constitutional change in that a power previously vested in the Executive Committee
will thereafter be vested in the Working Committee. Accordingly, such a " vesting " can only be effected by means ofa
Constitutional amendment not by a mere resolution of the Executive Committee.
3.In any event, even if Rule 8 (3) (m) permits some " vesting " of powers by resolution, this would not extendtoanyof
the powers and duties expressly enumerated in Rule 8 (3), but only to incidental matters and routine matters of day-to-
4. Even if expressly enumerated powers and duties can be " vested ", yet they cannot be transferred in toto, so as todenude
the Executive Committee of all its powers.
5. In any event the resolution proposed at a meeting of the Executive Committee held on 19.4.91 - "
It is hereby proposed that theWorkingCommitteeofthePartybevestedwithfullpowerstocarryoutthe
responsibilities and functions of the National Executive Committee of the Party " - is vague,andisineffectiveto
clothe the Working Committee with disciplinary powers. Further, the minutes of themeetingdonotrecordthatthe
resolution was passed.
6. The Court should adopt a strict construction, presuming, firstly, that the Party Constitution does not, in general,allow
" vesting " or delegation, in the absence of clear and express provision and, secondly, that, even if there wassuch
provision, disciplinary powers of this nature were not intended to be transferred.
The minutes of the Executive Committee meeting of 19.4.91 are undoubtedly defective. Two resolutions arementioned,butit
is not stated that they were adopted. Had there been no other material, I would have held that theExecutiveCommitteehad
not vested its disciplinary powers in the Working Committee.However,thePetitionerswereexofficiomembersofthe
Executive Committeethey would have had notice of that meeting, and may havebeenpresent theycouldcertainlyhave
ascertained what. transpired. It was averred in the petitions that only the Executive Committeehasdisciplinarypowers
the Respondents replied annexing the minutes of the meeting of 19.4.91 whereby, they said, " the powers and functions ofthe
National Executive Committee were by resolution vested in the Working Committee under [Rule 8 (3)(m)]".ThePetitioners
obtained leave to reply however, even in their counter-affidavits they did not claimthattheresolutionhadnotbeen
passed instead they merely questioned the effect of that resolution, by assertingthatitdidnotenabletheWorking
Committee to exercise the disciplinary powers vested in the Executive Committee, for the reason that it purportedtoeffect
a Constitutional amendment. If the Petitioners were seriously contending that the resolution had only been proposed, butnot
passed, that allegation should have been made clearly, specifically and directly. I amsatisfiedthattheresolutionhad
been passed at the meeting, although the minutes are defective. I also hold that the resolution is notvague.Althoughthe
opening words of Rule 8 (3) refer to " duties ", it proceeds to enumerateahostofpowers,dutiesandfunctions.The
resolution, by using the phrase "full powers to carry out the responsibilities and functions ",manifestsanintentionto
delegate al! powers, duties and functions, including the " responsibility " and the "function " referred toinRule8(3)
(a) in relation to disciplinary matters.
It is clear that discretionary powers, whether conferred by statute or by agreement, must ingeneralbeexercisedbythe
designated repositary of those powers.
" An element which is essential to the lawful exercise of power is that it should be exercised bytheauthorityupon
whom it is conferred, and bynooneelse.Theprincipleisstrictlyapplied,evenwhereitcausesadministrative
inconvenience, except in cases where it may reasonably be inferred that the power was intendedtobedelegableThemaxim
delegatus non potest delegare is sometimes invoked as if it embodied some general principle that made itlegallyimpossible
for statutory authority to be delegated. In reality there is no such principle and the maxim playsnorealpartinthe
decision of cases, though it is sometimes used as a convenient label. Its proper home is inthelawofagency,whereit
expresses the point that a principal who must accept liability for the acts of his agent need not accept it for theactsof
his agents agent but even here there are wide exceptions. In thecaseofstatutorypowerstheimportantquestionis
whether, on a true construction of the Act, it is intended that a power conferred upon A may be exercisedonA'sauthority
by B. The maxim merely indicates that this is not normally allowable. For this purpose no distinction need bedrawnbetween
delegation and agency. Whichever termisemployed,thequestionofthetrueintentoftheActremains".(Wade,
Administrative Law, 5th Edition pp 319-320)
This is not an instance where from its very nature, the power to delegate can be inferred. However, Rule 8(3)(m)appears
to permit the Executive Committee to authorise the Working Committee to exercise powersconferredontheformer.Learned
Presidents Counsel's contentions depend almost entirely on the meaning of the word " vest ": which he seeks toequateto"
abdicate ", " renounce " or " alienate ", permanently and irrevocably. On being asked the ordinary meaning oftheword,in
the context of power and authority, his reply was that it meant " clothe ". In law, where a grantor " clothes " anotherwith
power or authority, there is no implication of a denudation of the grantor's powers, norofirrevocabilityorpermanency.
That is also the plain meaning of the word, in every day usage and in literature,asevidencedinShakespeare'simmortal
lines : " Man, proud man, dressed in a little brief authority ". To dress a grantee with authority, or toclothe,orvest,
him with power, does not imply an irrevocable and permanent renunciation of his powers by the grantor, " Vest " is thusakin
to " delegate ", rather than . to " abdicate ", " Vest " is used in that sense in the Constitution (e.g. in Articles 118(g)
and 138 (2)). Parliament is authorised by Article 4 (c) directly to exercise the judicial power of the peopleinregardto
matters relating to the privileges, immunities and powers of Parliament and its Members. If Parliament were,bylawpassed
in terms of Article 138 (2), to " vest " in the Court of Appeal power andjurisdictioninrespectoftheimmunitiesof
Members of Parliament, this would be an exercise of legislative power permitted by, and consistentwith,theConstitution.
Neither such exercise, nor the result of such exercise, would be inconsistent with the Constitution.Thereforenoquestion
of amending the Constitution can arise, and an ordinary law would suffice. In particular, such vesting would notinvolvean
abdication or alienation of legislative power in violation of Article 76.Inthesameway,theExecutiveCommitteeis
authorised directly to exercise disciplinary powers if by resolution the Executive Committee " vests " such powersinthe
Working Committee, that is permitted by, and consistent with Rule 8 (3) (m).Neithertheact,northeresult,ofsuch
vesting is inconsistent with the Party Constitution hence no question of amending thePartyConstitutionarises,anda
resolution is sufficient. A somewhat similar problem arose in Wickramabahu v. Herath,(1) where it was held that
" If in respect of a fundamental right recognised by Article13(1)and(2),anEmergencyregulationimposesa
restriction which is permitted by Article 15 (7), such regulation does not over-ride, suspend or amend any provisionofthe
Constitution it is a restrictionpermittedbytheConstitution,andisbothintraviresandconsonantwiththe
Constitution, and therefore does not 'over-ride' the Constitution."
I hold that the exercise of a power to " vest " permitted by Rule 8 (3) (m) does not over-rideorconflictwiththe
Rules, but is consistent with the Rules, and requires no amendment of the Rules.
The Petitioners further contend that Rule 8 (3) (m) does not expressly permit the transfer of disciplinary powers,and
that,. even if it did, both the nature of those powers and the nature of the two Committees justify apresumptionthatthe
Rules did not contemplate any delegation. Undoubtedly, that Rule does not specifically authorise delegationofdisciplinary
powers : it might have said " all or any of the powers and functions ", or " including those specified inparagraph(a)",
and the matter would then have been unarguable. But in my view such a provision was unnecessary. Rule 8 (3) (m) as itstands
makes express provision covering the vesting of disciplinary powers
".............express provision is provision the applicability of which does not arisebyinference.......Thefact
that the language used is wide and comprehensive and covers many points other than the one immediately under discussiondoes
not make it possible to say that its application can arise by inference only.Tobe'expressprovision'withregardto
something it is not necessary that thing should be specially mentioned it is sufficient that it is directly covered bythe
language however broad the language may be which covers it so long as the applicability arisesdirectlyfromthelanguage
used and not by inference therefrom. Shanmugam v. Commissioner for Registration of I. and P. Residents (2).
There is neither a prohibition on vesting any of the enumerated powers and functions, noranyrestrictionpermitting
delegation only in respect of minor or routine matters. Although Rule 8 (2) referstotheExecutiveCommitteeas"the
administrative authority ", there are numerous other Rules directly conferring important administrative powers andfunctions
on the Working Committee, such as
(a) Notwithstanding any other provision, the Working Committee has the power to dissolve any District Balamandalaya,Polling
Division Organisation, or Main Association (Rule 2A(4)).
(b) The Nomination Board appointed by the Working Committee, in consultation with the WorkingCommittee shallnominatea
candidate for the Presidency (Rule 9 (a)), as well as candidates for other elections (Rule 9(b)).
(c) When a vacancy occurs in the office of President, the Parliamentary Party in a joint session with theWorkingCommittee
shall select the Party candidate (Rule 9 (c)).
(d)It has the power to approve the constitution and the recognition of local andaffiliatedorganisations(Rules2A(1),
2A(2), 2A(6) and 3(1)(e)).
(e)It may issue directives to members as to their attitude at elections where there is no Party candidate (Rule 3(1)(c)).
(f)It has power to correct any mistake or omissionin,andtogivenecessarydirectionsintheinterpretationand
implementation of, the Party Constitution (Rule 21).
The Party Constitution thus does not treat the Working Committee as asubordinatebodytobeentrustedonlywith
routine matters of daily administration. I hold that Rule 8 (3) (m) expressly empowered the Executive Committee tovestall
or any of its powers and duties whether expressly enumerated or not. The delegationinquestiondoesnotpurporttobe
permanent or irrevocable, and thus there has been in fact no " denudation " of its powers by the Executive Committee itis
unnecessary to consider whether any such " denudation " would be of no effect. Its size, the difficultyofhavingfrequent
meetings, and the complexity of the decision-making process in a large body, are matters which the Executive Committeecould
legitimately have taken into account in delegating its powers to a smaller Working Committeeselectedfromamongitsown
members the Executive Committee remained free at any subsequent meeting to revoke or vary such delegation.Inparticular,
it could justifiably have taken the view that the advantage of itself conducting disciplinary inquirieswasfaroutweighed
by the disadvantages.
It remains to consider the final submission that it is easier to delegate an administrative functionthanajudicial
function : Young v. Fife Regional Council,(3) and that even if all other powers and duties may be delegated verydifferent
considerations apply to the delegation of disciplinary powers:
" A statutory power to delegate functions, even if expressed in wide general terms,willnotnecessarilyextendto
everything. Thus it has been held that the GeneralMedicalCouncilmustitselfexerciseitsdisciplinarypowersover
dentists and cannot delegate them to its executive committee, even though it has express statutory power to act throughsuch
a committee for the purpose of its functions under the Dentists Acts. In the case ofImportantjudicial.anddisciplinary
functions the court may be disposed to construe general powers of delegation restrictively." (Wade, AdministrativeLaw,5th
Edition p. 325)
General Medical Council v. U. K. Dental Board (4) is cited. Under the Act of 1878, the Council had no power to delegate
its disciplinary powers it could ascertain the facts through a Committee. In 1921, the lawwasamended,byestablishing
the Dental Board. The Council continued to have disciplinary powers, but the Dental Board was in effect substitutedforthe
Committee. The 1921 Act further provided that the Council, for thepurposeofitsfunctions,hadpowertoactbyan
executive committee of the Council. It was held thattheCouncilcouldnotdelegateitsdisciplinarypowerstosuch
executive committee. The apparently wide terms of the latter provision were on examination found to be inconsistent withthe
detailed scheme, existing from 1878, under which the Council exercised disciplinary powers, afterobtainingareportfrom
the Committee (and later the Dental Board). It was held that the wide terms of that provision were necessarily restrictedby
the other, and inconsistent, provisions of the statute. In the Party Constitution, there is nosuchinconsistency.Further
the Working Committee possesses as already noted, power analogous tothedisciplinarypower,namelytodissolvemember
Learned President's Counsel was able to point only to two features of thePartyConstitutionasmilitatingagainst
delegation of disciplinary powers. Rule 8 (2) makes the decisions of the Executive Committee final, subject to review bythe
Party Convention. If disciplinary powers are delegated to the Working Committee, this right of review willbelost.Itis
not clear whether " review " includes the right to reverse or vary a disciplinaryorder,butassumingthatitdoes,it
appears to me that a decision of the Working Committee, in the exercise of delegated authority,will,forthepurposeof
Rule 8 (2), be deemed to be the decision of the Executive Committee, i.e.adecisionmadevicariouslybytheExecutive
Committee and therefore subject to review just as a decision made directly : quio facit per alium facit perse.Thesecond
matter urged by him was that the allegations against the Petitioners related to questions of policy, and policy was amatter
for definition by the Executive Committee (Rule) 9 (f)) hence the Executive Committee was best qualified to determinewhat
policy was, and whether it had been violated. That is not aconsiderationapplicabletothedelegationofdisciplinary
powers in general, but only against delegation in matters involving policy. In any event, it is not necessary,andmaynot
even be desirable, that the body which lays down policy should determine whether there hasbeenaninfraction:justas
legislatures are generally not considered best suited to determine whether the laws enacted by them have beeninfringed.On
the other hand, it is perfectly reasonable to infer that a body with 2500 members was never intended to exercise powers ofa
quasi-judicial nature, especially where facts had to be inquired into.
I therefore hold that the Executive Committee was authorised to, and did validly, vest in or delegatetotheWorking
Committee its disciplinary powers under Rule 8 (3) (m). Although argued at length, it is unnecessary todecidethefurther
question whether the " endorsement " by the Executive Committee of the decision of the Working Committee constituted avalid
5. THE GROUNDS FOR EXPULSION
(a) Position of Member of Parliament vis-a-vis his Party
Learned President's Counsel for the Petitioners submitted that the position of a memberofParliamentvis-a-visthe
political party to which he belonged at the time of election, andhisrights,powersandprivilegestospeakandact
according to his own conscience and independent judgement, was governed by the following principles
(i) Prior to 1978, a Member was not a mere delegate of his Party,andenjoyedcompletefreedomofactionanddecision
makingthere was no legal fetter on his conduct in Parliament.
(ii) This position was not changed by the 1978 Constitution, and the 14th Amendment, which did not reduce a Member to amere
cog in the Party machine. Despite the introductionofProportionalrepresentation,other"pivotal"provisions
(especially Article 4 (a)) in regard to the position of Members remained unchanged. The 14thAmendmentcouldnotbe
regarded as having altered those provisions by implication, in view of Article 82 (1) and (6).
(iii) A Member of Parliament is " immune from the dictatorship of the political party to which he belongs"becauseunder
Article 4 (a), read with Article 3, he is an elected " representative " of the people, andnotamere"delegate".
Parliament exercises the sovereignty of the people, and the essence of sovereignty is that the body declaredsovereign
is free of any external restraints and is not subordinate to any other body.
(iv) Article 3 provides that sovereignty includes fundamental rights (cf. Article 4 (d)) among which are freedom ofthought,
conscience, speech and expression.
(v) Article 67 preserves the privileges, immunities and powers of Parliament and itsMembers theseincludefreedomof
speech and proceedings in Parliament. If a Member cannot be sued in the Courts in respect of such matters, hisconduct
cannot be impeached before the Party Working Committee, nor can he be asked why he did notfirstresorttointernal
(vi) Constitutional provisions in regard to the President (Article 42) and the Cabinet (Article 43) establish thatbothare
answerable to Parliament. It makes no difference that Article 42 makesthePresidentonly"responsible",while
Article 43 makes the Cabinet " collectively responsible and answerable "for " responsible " includes " answerable".
This demonstrates that on occasion Members of Parliament sit in judgement overPresidentandCabinet,andinthat
sphere they must necessarily be completely independent.
Learned President's Counsel referred us to Edmund Burke's famous speech to the electors of Bristol in 1774:
" Parliament is not a congress of ambassadors fromdifferentandhostileinterests whichinterestseachmust
maintain, as an agent and advocate, against other agents and advocates but parliament is adeliberativeassemblyofone
nation, with one interest, that of the whole where not local purposes,notlocalprejudicesoughttoguide,butthe
general good, resulting from the general reason of the whole. You choose a member indeedbut when you havechosenhim,he
is not a member of Bristol, but he is a member of Parliament."
In 1888, John Bright proclaimed
" I must follow my own judgement and conscience and not the voice of my Party leaders."
That may have been true of the sovereign Parliament of the United Kingdom, in the 18th and 19th centurieswithouta
written Constitution and with the type of constituency and the limited franchise of that era. Whetherthatisapplicable
to a non-sovereign legislature, governed by a written Constitution, whichrecognisesthesovereigntyofthepeopleand
provides for a separation of functions, in the context of the development of the Party system, I doubt.Thetheorythata
Member enjoys absolute and unfettered freedom of judgement and action does not seem to be accepted evenintheU.K..Thus
" It is sometimes suggested that a member of the legislative assembly must be either a delegateorarepresentative,
must either vote as he is instructed, or use his best judgement upon the issues he is called upontodecide.Thatis,in
fact, a wholly false antithesis. For no member can state his total views partly because there is not thetimetodoso,
partly because new issues are bound to arise. And upon those new issues he cannot, item by item, consult his constituentsin
such a fashion as to elicit from them their considered judgement. Any constituency is entitled to the fullestexpressionit
can get of a member's general attitude. It is entitled to know his views upon the questionsoftheday.Anyelectormay
reasonably ask for an explanation of his political actions. But a member is not the servant of a partyinthemajorityin