Legal Services and Laws of Sri Lanka
SLR - 1993 Vol.2, Page No - 90
MRS. SIRIMAVO BANDARANAIKE AND OTHERS
RAMANATHAN, J. AND
SC (Spl.) 3/93.
JULY 26, 27, 28, 29, 30 AND AUGUST 2, 3, 1993.
Constitutional Law - Article 99(13) (a) and (c) of the Constitution - Expulsion from political party - De factoexerciseof
power by party office bearers - Freedom of speech - Freedom of Association - Failure to use for a within partytoventilate
grievances - Article 14(1) (a) and (c) of the Constitution - To what extent canfreedomofspeechberestrictedbythe
requirement of party discipline - Nature of membership of a political party - Obligations of membership.
Petitioner, an elected Member of Parliament of the SLFP, was persistently urging the partyleadershiptoholdintra-party
elections for various committees of the party organization in terms of the partyconstitution.Admittedly,nointra-parry
elections have been held since 1986. Petitioner made a statement to "Lakdiva" newspaper whichwaspublishedon24.01.1993
the contents of which related to democracy and non-holding of electionsoftheSLFPwhichwascommittedtodemocracy.
Charges against the petitioner in the show cause letter sent to him were based on that statement admittedly madebyhimto
"Lakdiva". He was expelled from the party on a decision taken by the executivecommitteeon2.6.93afteradisciplinary
inquiry to which he refused to submit. PetitionerchallengedhisexpulsionintermsofArticle99(13)(a)ofthe
Held: ┬ ┬ (Ramanathan J. dissenting)
(1) Jurisdiction of the Supreme Court in terms of theprovisotoArticle99(13)(A)iswide itisanoriginal
jurisdiction on which no limitations are placed. In deciding whether the expulsion of a Member ofParliamentwasvalidor
invalid some consideration of the merits is obviously required.
(2) Regarding the competence of the expelling authority to expel the petitioner, it is sufficient ifithadthedefacto
power to expel. The de facto doctrine is based on public policy and necessity it is a pragmatic doctrine designed toavoid
endless confusion and needless chaos resulting from legality of the expellingauthoritybeingsuccessfullychallengedin
(3) A political party is a voluntary association and its members are bound together by a contract which is usually theparty
constitution from which arises contractual obligations of the membership. These obligations are eitherexpressorimplied.
Article 14 (1) (c) of the Constitution guarantees to every citizen the freedom of association. Freedom of associationplaces
a voluntary self-limitation on the freedom of speech and expression guaranteed underArticle14(1)(a)andthatself-
limitation is the foundation of the freedom of association. Petitioner took every possible step within thepartyforato
persuade the party leadership to hold elections in terms of the party constitution and when his persistent pleasbroughtno
results, in the interest of the party he spoke to the media. In thosecircumstancestheimpugnedstatementmadebythe
petitioner to "Lakdiva" is justified as having been made in the exercise of his freedom of speech andexpressionguaranteed
under the Constitution. The expulsion of the petitioner is therefore invalid.
Cases referred to
1. Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  2 All ER 680  1 KB 223.
2. Dawkins v. Antrobus (1879) 17 Ch D 615 [1881-51] All ER Rep. 126(1881) 44 LT 557.
3. Richardson - Gardner v. Freemantle (1871) 24 LT 81.
4. Maclean v. Workers Union and Others (1929) 141 Law Times 83 1 Ch. 602. `
5. Hopkinson v. Marquis of Exeter (1867) LR 5 Eq. 63 (1867) 37 LJ Ch. 173.
6. Hamlet v. General Municipal Boilermakers and Allied Trade Union  1 Ali ER 631.
7. Dissanayake and Others v. Kaleel and Others - SC (Spl) 4 - 11/91 - SC Mins of 03-12-1991.
8.Parameswaran Pillai Bashkaran Pillai and another v. State Prosecutor AIR 1951 Travencore - Cochin 45.
9. P. S. Menon v. State of Kerala and Others AIR (1970) Kerala 165.
10. Immedisetti Ramakrishnaiah Sons, Anakapalli and Others v. State of Andra Pradesh and another AIR (1976) Andra Pradesh
11. Gokaraju Ranagaraju v. State of Andra Pradesh AIR (1981) SC 1473.
12. Adams v. Adams  WLR 188.
13. In re James  2 WLR 1 Ch 41.
14. Extein Norton v. Selby County, State of Tennesse (1886) 118 U. S. Lawyers' Ed. Book 30 page 178.
15. In re K. Stephen Perera et al 68 NLR 332.
16. Yapa Abeywardena v. Harsha Abeywardene and another SC 51/87 (Spl).
17. Scading v. Lorant (1851) 3 HLC 418, 447.
18. Jayatilleke v. Kaleel SC Nos. 1 and 2/92 - SC Minutes of 28-02-1992.
APPLICATION challenging expulsion from political party.
D. S. Wijesinghe, PC with Maxie Bastiansz, S. Mahenthiran, Nihal Fernando, A. M. Jiffery, Maithree Gunaratne with K.
Sivanathan and Preethikumari Arachchige of Sivanathan and Associates for Petitioner.
H. L. de Silva, PC with Nihal Jayamanne, Anandalal Nanayakkara and Ms. N. Amerasinghe for the 1st to 4th, 11th, 13th, 14th,
17th to 20th, 23rd, 27 to 36 respondents.
Manohara R. de Silva for 5th, 8th to 10th, 22nd and 26th respondents.
A. K. Premadasa, PC with G. H. S. Suraweera and C. E. de Silva for 16th respondent. No appearance for 6th, 7th, 12th, 15th,
21st, 24th, 25th and 37th respondents.
April 27, 1993.
Petitioner is a Member of Parliament belonging to the Sri Lanka Freedom Party(SLFP),dulyelectedatthegeneral
election held in 1989, to represent the Kalutara District. 1st, 2nd and 3rd respondents are President, General Secretaryand
Treasurer of the SLFP respectively 4th to 8th respondents are Vice Presidents while 9th and 10th respondents areAssistant
Secretaries 1st to 30th respondents are members of the Central Committee. and 31st to 35threspondentsaremembersof
the Disciplinary Committee. 36th respondent is the party itself - a recognized political partywithinthemeaningofthe
Parliamentary Elections Act No 1 of 1981. 37th respondent is the Secretary-General of Parliament whoisaddedasaparty
purely for the purpose of giving him notice of this application. Petitioner wasexpelledfromtheSLFPconsequenttoa
decision taken by the Central Committee on 2.6.93 and the 2nd respondent, General Secretary of the party by his letterdated
3.6.93 (P40) informed him of his expulsion. On 30.6.93 petitioner filed this application in terms of Article 99 (13) (a)for
a determination by this court that his expulsion from the SLFP is invalid. The parties represented by Mr.H.L.deSilva,
PC. and Mr. A. K. Premadasa, PC. have joined issue with the petitioner whileMr.ManoharadeSilvaonbehalfofhis
clients submitted to court that he supports the position taken up by the petitioner.
EVENTS IMMEDIATELY LEADING TO THE EXPULSION
Sometime prior to 6.9.92, as evidenced by the report in the " Island " newspaper of that date (P22) under thetitle"SLFP
leadership under challenge ", the petitioner, when interviewed by the mediaexpressedviewsadvocatingachangeinthe
leadership of the SLFP which he called the " old guard " and for holding of elections of office bearers, whichelectionshe
claimed had not been held for several years. By letter dated 16.10.92 (P23) the 1st respondent acting intermsofRule14
(7) of the party constitution (P1) suspended the petitioner from membership of the party. By that letter petitioner wasalso
informed that a disciplinary inquiry will be held against him for conducting himself " not in keeping withtheconstitution
and in disregard of discipline ". The statements made to the media by the 1st respondent P24 and P25 and the lettersentby
the petitioner to the 1st respondent on 23.10.92 (P25 A) indicate that sometime earlier, the petitionerhadvoicedsimilar
views to those contained in P22 to the BBC. Petitioner was prepared to withdraw the allegedlyoffendingstatementsifthe
1st respondent was prepared to give him a firm undertaking to withdraw the suspension. By letterP25Athepetitionerso
informed the 1st respondent. No charge sheet was served and no inquiry was heldinrespectofthestatementsissuedby
petitioner to the media and his suspension from membership of the SLFP continued unrevoked.
In January 93, the petitioner while under suspension from his party was interviewed by a journalist attached to the
newspaper called " Lakdiva " and excerpts of that interview were published in the
" Lakdiva " issue of 24.1.93 (P26). By letter dated 3.2.93 (P27) 2nd respondent drew petitioner's attention tocertain
excerpts from the petitioner's statement to " Lakdiva " and alleged that he had acted in gross violation of theconstitution
and discipline of the party. The letter further notified petitioner to show causewhydisciplinaryactionshouldnotbe
taken against him. Petitioner replied P27 by his letter dated 17.2.93 (P28). Petitioner was informed thereafterbythe2nd
respondent to be present at an inquiry to be held by the Disciplinary Committeeofthepartyon29.3.93.Petitionerby
letter dated 24.3.93 (P30) addressed to the 2nd respondent objected to 3 particular membersoftheDisciplinaryCommittee
inquiring into his matter on the ground of their being biased. He stated that an impartialinquirycouldbeheldifthe
committee is composed of any 5 out of 17 persons named by him 2membersalreadyintheDisciplinaryCommitteewere
included by him in this list of 17. Petitioner wanted to know in advancethenamesofthemembersoftheDisciplinary
Committee and he further asked for a postponement of the inquiry to a date after the Sinhala New Year. 2ndrespondentwrote
to the petitioner letter dated 2.4.93 (P34) to say that although the Disciplinary Committee met on 29.3.93, no inquirycould
be held due to the absence of the petitioner and that in order to give him another opportunity to presenthisdefence,the
inquiry was refixed for 16.4.93. By letter dated 7.4.93 addressed to the 2nd respondent, petitioner asked for anadjournment
of the inquiry fixed for the 16th one reason for his request as stated by him was thathewasextremelybusyoverthe
Provincial Council elections. On 16.4.93 the Disciplinary Committee met but the petitioner was absent andaletterbyhim
requesting a postponement was handed over to the committee byhislawyers.Thecommitteeaccededtothatrequestand
appointed 22.5.93 as the final date of hearing. On 22.5.93 petitioner did not appearbeforethecommitteeandamedical
certificate indicating petitioner's inability to attend due to hisillness,wastenderedonhisbehalfbyMr.S.L.
Gunesekera, M.P. The inquiry was then refixed for 1.6.93. On 28.5.93 petitioner wrote letterP38totheChairman/Member
Disciplinary Board in which he alleged inter alia that disregardinghisobjectiontosomemembersoftheDisciplinary
Committee investigating the complaint against him on the ground of bias, he was given to understand that thosememberswere
included in the committee the Disciplinary Committee was not one duly appointed under the SLFP constitution andthathe
was not obliged to submit himself to an inquiry by a Disciplinary Committee whichwasnotimpartialandwhichhadbeen
nominated by persons not validly holding office as members of the Central Committee of the SLFP.
On 31.5.93 petitioner filed action in the District Court seeking a declaration inter alia that the 1stto30threspondents
were not duly elected members of the Central Committee of the SLFP and further seeking an interim injunction restraining1st
to 30th respondents from subjecting the petitioner to a disciplinary inquiry. On 31.5.73 itself thelearnedDistrictJudge
Colombo made order refusing an enjoining order restraining 1st to 30th respondents. The Disciplinary Committee met on1.6.93
and submitted its report. On the following day the report was considered by the Central Committee and adecisionwastaken
to expel the petitioner with immediate effect. This decision was communicated to the petitioner by letter P40 dated 3.6.93.
THE SHOW CAUSE LETTER AND THE EXPLANATION
Allegations against the petitioner which culminated in his expulsion are contained in the show-cause letter P27 written
by the 2nd respondent in Sinhala. It is useful forthepurposeoftheseproceedingstosetoutinfullanEnglish
translation of that document.
It has been reported to me that the following statements among others have been made byyouaspublishedunderthe
caption " Dialogue " (debasa) in the Sunday 24th January 1993 issue of the " Lakdiva " volume 1issueno.2,whichisa
public news paper published and distributed in Sri Lanka.
" We call the SLFP a democratic party. We ask for a mandate to establish democracy in thiscountrybutthereisno
democracy in our party itself. A very dangerous type of dictatorship is prevailing in our party. This is theprimaryreason
for this dispute ".
" There has been only one leadership in the SLFP for the last 24 years. This is a thing that should never happenina
political party working under a democratic structure. However good may such leader be, it is a gross injusticetotheable
and educated lot in the lower strata of the party who represent several generations andwhoalwaysstagnateinthesame
position. Therefore, a non-stop pressure from the bottom to the top is inevitable.
This is the main and primary reason for this dispute. It is an extraordinary thing if internal conflicts donotarise
in a party like this that calls itself democratic. The simple answer that this is a fight betweencapitalismandsocialism
is not valid in fact."
"Had we not made this struggle, there would have been no room for the existence of any active politics in theSLFPby
now. What new thing have we given to the people? We have been stagnating in the same place for a number of years.Wecannot
go forward without creating such a change and innovation as this inside our party.
The progress and existence of the party rests in the victory or defeat of the strugglewearecarryingonforthe
establishment of democracy. There are two camps in the party now. A party so divided cannot March towards a specific goal.
No election of office bearers has been held in this party for the past eight years. This alone clearly showsthatthe
party leadership has accepted the position that it cannot win in a just election held to elect office bearers.
If we are to challenge the anti-democratic and dictatorial leadership of a political partyliketheUNP,weshould
first make ourselves strong. We should havealeadershipthatcanguideustowardsonegoal.Butwhenitisnot
" Administrative structures of all descriptions in this country are in the hands of the UNP. The UNP has beenableto
strengthen its power in whatsoever manner in all political and administrative spheres. At a timewhenallthesestrengths
are with him, I do not believe that President Premadasa will hold such a so calledjust'election.Idonotthinkthat
Premadasa can be defeated in a just' election. He will hold such elections as he can win.
Therefore, Premadasa can be defeated only through a true struggle by the people. Such cruel rulers like these could not
be driven away through democratic methods. If we are to chase Premadasa away by any means we must have a true leadershipfor
that purpose. Today what we lack is only the necessary leadership. "
According to the copy of the letter dated 25.1.93 addressed by you to the editor of the Sunday Observer annexed tothe
25.1.93 sent to me by you, you have admitted that you made statements to the said "Lakdiva" newspapers of 24.1.93.
I have to state that grave injury and damage has been caused to the Sri Lanka Freedom Party and toitsactivitiesas
well as to its leadership by the publication of the aforesaidstatementsinthe"Lakdiva"newspaper.Furtherthese
statements have caused the general public to be discontended and disappointed with the SLFP and its leadershipandforthe
general public to hold them in contempt and disgrace.
If you have made the above mentioned statements while being a member of the Sri Lanka Freedom Party as well as a Member
of Parliament of that party, they are seriously detrimental to the party and it is a violation of its constitutionandan
act of grave misconduct. It is also a matter of violation of party discipline.
For your easy perusal I am annexing hereto a copy of the full dialogue as published in the said newspaper "Lakdiva"
and you are hereby requested to show cause within 14 days of the receipt of these statements.
The charges were based on " the aforesaid statements " as picked and chosen by the 2nd respondentandinmyopinion
they were so understood by the petitioner. Most candidly he admitted havingmadethosestatementsto"Lakdiva".The
explanation for his conduct, he promptly offered within the stipulated time to the 2nd respondent by letter P28whichreads
I am in receipt of your letter dated 3rd February 1993 received by me on the 5th instant.
I have been and am strongly of the view that -
(a) There has to be due and proper elections within the party and primarily for the Central Committee.
(b) The party leader must be duly and properly elected.
(c) It is not proper that one person should hold the leadership of the party for34yearswithoutbeingelectedbythe
(d) That the ' Central Committee ' and/or the ' Office Bearers ' of the Party cannot properly orlawfullyfunctionforso
many years without a proper election.
These views, I have repeatedly expressed to prominent members of the SLFP and have withoutambiguityexpressedthese
views to Mrs.SirimavoBandaranaike,MP,Mr.AnuraBandaranaike,MP,Mr.DharmasiriSenanayake,MP,Mr.Kingsley
Wickramaratne, MP, Mr. Mahinda Rajapakse, MP, amongst many others.
I have also expressed these views within the SLFP organizations of my electorate andalsoatmeetingsoftheSLFP
Parliamentary Group. These are the views I would have expressed before the All Island Committee and theExecutiveCommittee
of the party had they been summoned. I was prevented from expressing my views even to these committees by reason of thefact
that meetings thereof were not summoned in breach of the imperative provisions of the Party Constitution for several years.
I am not a member of any other committee or organ of theSLFPandhavenootherforum(atpresentexceptSLFP
organization in my electorate) to express my views.
My efforts of communicating these views to the membership of the SLFP through Mrs. Sirimavo Bandaranaike, MP, Mr. Anura
Bandaranaike, MP, Mr. Dharmasiri Senanayake, MP, Mr. Kingsley Wickramaratne, MP and Mr. Mahinda Rajapakse, MP,havebrought
no results. No dialogue was possible. No forum was given to me within the party to express my views to the membership ofthe
party. My views were not placed for discussion at any forum of the SLFP.
On the other hand, I was suspended from the membership of the party from on or about 16th October 1992 andnocharges
have yet been preferred. I was thus deliberatedly prevented from expressing my views within the SLFP or having myviewsput
up for discussion within the SLFP.
I am also a Member of Parliament elected from the Kalutara District as a member of the SLFP. In these circumstances,I
have a duty to bring to the notice of the membership of the SLFP and the supporters of the SLFP my views.
In the circumstances set out above, the only manner in which I could bring these matters to the notice of these persons
was through the media.
The views expressed are political, fundamental and emanatefrommyconscience.Theyarenotinanywaydirected
personally against anyone inclusive of Mrs. Sirimavo Bandaranaike, MP.
I stand by my views, specially taking into consideration the constitution of the SLFP. l once again request that proper
elections be held to the Central Committee and for the Party Leadership.
With regard to what was published in the " Lakdiva " of 24.1.93, I was interviewed by Mr. WimalasiriGamlathofthat
publication. I expressed my views to him, but not all views expressed by me to him were expected to bepublished.Theonly
views expressed by me which I expected to be published concerned the lack of elections to the Central Committeeandtothe
I do not share the view that any harm has been caused to the party or its leader by the publicationyourefertoin
your letter to me. The party as you are aware is fighting for greater democracy. I deny that I have acted againsttheparty
and/or acted in breach of party discipline in granting the interview.
I have always been a loyal Member of the SLFP and have not acted against the interests of the party, and will never act
against the interest of the party because, among other things, it is self defeating. On the other hand Ihavealwaysacted
in the best interest of the SLFP and of the Country.
In conclusion, I am constrained to say that I am surprised to have received your letter accusingmeofabreachof
party discipline by making the statements in question to " Lakdiva ". Several members of the partyincludingMrs.Sirimavo
Bandaranaike, MP, Mr. Anura Bandaranaike, MP, Mr. StanleyThilakeratne,MP,Mr.NandimithraEkanayake,MP,Mr.S.B.
Dissanayake, MP and Mrs. Chandrika Kumaranatunga have made statements extremely critical of the Party and/or its membersand
such statements received wide publicity in the press. However, no disciplinary, action was at any time taken againstanyof
them for making the said statements.
In the circumstances, I have been singled out for discriminatory treatment and I cannotresistconcludingthatyour
letter has been actuated by malice.
The Disciplinary Committee, as seen by the report 2R9 dated 1.6.93, was unanimous in arriving attheconclusionthat
the petitioner " (a) lowered the party and its leadership in the estimate of the general public (b) brought thepartyand
its leadership into disrepute and (c) contravened party discipline." The Central Committee members summoned by telephonemet
on 2.6.93 and according to the minutes of the meeting 2R10 among some other matters the report 2119 was considered.Majority
of members numbering 18 voted for the expulsion of the petitioner, 4 voted against and 3 abstained.
CHALLENGE OF PETITIONER'S EXPULSION - GROUNDS
Before commencement of the hearing, the broad grounds upon which petitioner relies to challenge his expulsion inthese
proceedings, were submitted to us in writing at our request, by learned President's Counsel for the petitioner.
Those grounds are :
1. Absence of jurisdiction in the Central Committee to expel him by reason of the averments in paragraphs 58to60ofthe
petition. The petitioner submits that it is not an answer for the principal respondents to say thatthepetitionerhadby
his conduct impliedly waived the right to challenge the jurisdiction of the Central Committee, forthereasonthatwaiver
necessarily implies knowledge of one's rights plus an election to abandon those rights.
2. Absence of jurisdiction in the Disciplinary Committee to holdtheinquiryagainstthepetitionerbyreasonofits
irregular appointment, the mala-fides prompting the appointment, and bias on the part of some membersofthecommitteeas
averred in paragraphs 61 and 41-43 of the petition. The petitioner also submits that the delegation of the powertoappoint
the members of the Disciplinary Committee to the 1st respondent is ultra vires the constitution of the party.
3. That the party leadership could not have taken action to expel the petitioner for granting the interviewtotheLakdiva
newspaper as it was held out to the membership that criticism of the party leadership will not beconsideredagroundfor
disciplinary action. The conduct of the party leadership amounts to a waiver and/oracquiescenceand/orestopsthemfrom
taking disciplinary action against the petitioner.
4. Even if there was a breach of discipline, the petitioner wasjustifiedingrantingtheinterviewwhichledtohis
expulsion by reason of the unreasonable and unconstitutional stifling by the party leadership of hisundoubtedrightasa
member of a voluntary association to communicate and gain acceptence of his point of view with regard to a need forinternal
5. The expulsion was invalid by reason of malafides.
6. That having regard to the flagrant and contemptuous violations of the fundamental provisions of theconstitutionbythe
party leadership the constitution was for all practical purposes a dead letter. It is therefore notopentothepurported
Central Committee to invoke the provisions of the selfsame constitution to justify the expulsion of the petitioner.
7. The expulsion is invalid by reason of the failure on the part of the Central Committee to comply withtheprinciplesof
natural justice. The petitioner submits that the lack of due and proper notice, the undue haste, the failure tonoticesome
of the members, the active participation of the 1st respondent, the total lack of material before theCentralCommitteeof
the defence of the petitioner etc. vitiated the decision to expel the petitioner.
JURISDICTION OF THE SUPREME COURT
The nature of the jurisdiction conferred on the Supreme Court in terms of the provisotoArticle99(13)(a)isindeed
unique in character it calls for a determination that expulsion of a MemberofParliamentfromarecognizedpolitical
party on whose nomination paper his name appeared at the time of hisbecomingsuchMemberofParliament,wasvalidor
invalid. If the expulsion is determined to be valid, the seat oftheMemberofParliamentbecomesvacant.Itisthis
seriousness of the consequence of expulsion which has promptedtheframersoftheConstitutiontoinvestthatunique
original jurisdiction in the highest court of the Island, so that a Member of Parliament may beamplyshieldedfrombeing
expelled from his own party unlawfully and/or capriciously. It is not disputed that this court'sjurisdictionincludes,an
investigation into the requisite competence of the expelling authority aninvestigationastowhethertheexpelling
authority followed the procedure, if any, which was mandatory in nature an investigation as to whether there was breachof
principles of natural justice in the decision making processand an investigation as to whether in the event ofgroundsof
expulsion being specified by, way of charges at a domestic inquiry, the member was expelled on some other grounds whichwere
not so specified. Mr. H. L. de Silva, PC. contended that the decision to expel the petitioner was apoliticaldecisionand
therefore the criteria adopted for expulsion may vary from case to case, person to person and time to time heremindedus
of the words of caution of the great American Chief Justice, Marshall that 'judges should not enter thepoliticalthicket'.
He submitted that the jurisdiction of this court does not extend to an examination of the merit worthiness of theexpulsion.
It was submitted that this court could interfere only if the decision of the expellingauthoritywasunreasonableinthe
''Wednesbury sense' (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1) that is, if the decisionisso
unreasonable as to be irrational. Our attention was drawn to the followingcasesrelatingtoexpulsionofmembersfrom
voluntary associations :- Dawkins v. Antrobus (2) Richardson - Gardner v. Freemantle (3) Macleanv.WorkersUnionand
Others (4) and Hopkinson v. Marquis of Exeter (5) where it was held that if exercise of the powerofexpulsionwasmade
bona fide, the court should refrain from interfering. The case of Hamlet v. General Municipal Boilermakers andAlliedTrade
Union (6) was also cited where failure of the domestic tribunal to take into account matters which wererelevantortaking
into account matters which were irrelevant, was held to be not falling within the scope of review by court.
Our jurisdiction appears to be wider it is an original jurisdiction on which no limitations have been placed by Article99
(13) (a). As stated by Fernando J. in Dissanayake and others v. Kaleel and others (7) " Our ownjurisdictionunderArticle
99 (13) (a) is not a form of judicial review, or even of appeal, but rather an original jurisdiction analogous toanaction
for declaration, though it is clearly not a rehearing. Are we concerned only with the decision makingprocess,ormustwe
also look at the decision itself? Article 99 (13) (a) required us to decide whether the expulsionwasvalidorinvalid
some consideration of the merits is obviously required.'
THE CENTRAL COMMITTEE AND COMPETENCE TO EXPEL
At the apex of the SLFP hierarchy is the Central Committee, which according to the partyconstitutionP1,isitssupreme
body. It consists of 3 component elements 12 members of the party elected by the Executive Committeenotmorethan11
representatives appointed by the President of the party from among the members of the ExecutiveCommittee andnotmore
than 10 Members of Parliament (Rule 13). The constitution is silent as to how these Members of Parliament are tobepicked,
but it is reasonable to assume that it implies that they are to be elected from among themselves and are not to be chosenby
the President of the party. The Central Committee has the power to appoint a Disciplinary Committee comprisedof5members
and to determine powers and functions of the latter body (Rule 15). Where the General Secretary is convinced that anymember
of the party has contravened the party policies or has violated party discipline, he has the power tocallforexplanation
from such member and submit a report to the Disciplinary Committee for action. Disciplinary Committee isthenempoweredto
hold an inquiry and convey its decision to the Central Committee. The Central Committee is vested with the power toconsider
the report and determine the course of action to be takenagainsttheerrantmember(Rule14iv).Independently,the
President of the party has the power to suspend a member from his membership (Rule 14 vii).
Petitioner contends that the Central Committee which expelled him was not. lawfully constituted or wasfunctusinasmuchas
no annual elections have been held, as the constitution requires, to elect office bearers either of the Central Committeeor
of the Executive Committee since 1986. The fact that no elections have been held for those bodiessince30thJanuary1986
was admitted by the respondents. Rule 28 of the party constitution provides that elections of all organizationssetoutin
the constitution shall be held annually or within the period as may be determined by the CentralCommittee.Itispointed
out that the Central Committee never gave its mind to that matter in order to make a determination as to anysuchperiod
if there was any such decision the contesting respondents failed to produce the minutes of such a determination. Itisalso
pointed out by learned counsel for petitioner that Rule 31 of thepartyconstitution,whichmakesprovisionforoffice
bearers already holding office to continue to function until new office bearers are elected for anyyear,cannotcurethe
irregularity of not holding elections for 7 long years. He is right in that submission.
Counsel for the petitioner further contended that the Central committee was not a lawfully constituted body for the
following reasons :
(1) Appointment of 10th respondent who is a Member of Parliament, by letter dated 5.11.88 (P47) by the 1strespondent,also
appointing him to the post of Assistant Secretary of the Central Committee by the same letter.
(2) Appointment of 16th-19th respondents who are Members of Parliament by the 1st respondent on 2.7.91.
(3) 21st 27th respondents who were elected to office in 1986 by virtue of their being Members ofParliament,ceasedtobe
Members of the then Parliament on its dissolution on 20.12.88 they were not re-elected to the Central Committee afterthey
were elected as Members of Parliament subsequently.
(4) 29th and 30th respondents who are presently Members of Parliament were appointed by the CentralCommittee,althoughon
20.10.92, the SLFP parliamentary group unanimously decided to appoint two other Members of Parliament.
(5) 25th respondent who was an elected Member of Parliament, resigned his seat on or about 7.4.93, yet continues tofunction
as a member of the Central Committee.
(6) 20th respondent was appointed in or about October 92 by the 1st respondent.ShewasnotamemberoftheExecutive
Committee at the time of her appointment.
Mr. H. L. de Silva, PC. submits that the validity of the composition of the Central Committee cannotbeattackedinthese
proceedings which are collateral andsuchchallengeshouldbeappropriatelymadedirectlyinacourtofcompetent
jurisdiction empowered to grant a declaratory decree. He invited this court to proceed onthebasisthatmembersofthe
Central Committee have acted under colour of their office and submitted that all actsdonebytheCentralCommitteeare
legally valid, until the composition of the Central Committee isdeclaredtobeinvalidinanappropriatedeclaratory
action. It was contended that the de facto doctrine gave validity to acts of persons who held office at the relevant timeof
making the impugned decision and that the members of the Central Committee were not total usurpers. Reliancewasplacedin
support of the de facto doctrine on the dicta expressed in the following cases :- Parameswaran PillaiBashkaranPillaiand
another v. State Prosecutor (8) P. S. Menonv.StateofKeralaandothers(9) ImmedisettiRamakrishnaiahSons,
Anakapalli and others v. State of Andra Pradesh and another (10) Gokaraju Rangaraju v. State of Andra Pradesh (11)Adams
v. Adams (12) In Re James (13) Extein Norton v. Selby County, State of Tennessee (14) and In Re K. Stephen Pereraetal
The de facto doctrine is based on public policy and necessity it is apragmaticdoctrinedesignedtoavoid"endless
confusion and needless chaos " resulting from the legalityofappointmentsbeingsuccessfullychallengedincollateral
proceedings. Learned counsel for the petitioner submitted that this doctrine cannot be applied to the factsofthepresent
case, because the members of the Central Committee, far from having acted bona fide in the interest of thepublicorthird
persons, have acted for their own benefit. There is no material before us to determine thattheCentralCommitteemembers
acted for their own benefit. It was further contended by Mr. Wijesinghe, PC, that none of the cases cited in supportofthe
de facto doctrine deal with instances of domestic bodies, but they all deal with statutory tribunals or officials createdby
law. I see no reason for this court not to be guided by the same principleinconsideringtheauthorityoftheCentral
Committee which appears to have had numerous dealings in running the party with the general public andinstitutionscreated
by law. I cannot overlook the fact that the SLFP is a major political party in this countrywhichhasheldthereinsof
power on several occasions since its birth in 1951 and which now forms the largest parliamentarygroupintheopposition.
1st respondent as leader of the party, as its constitution provides, has appointed a large number of electoralorganizers
and 2nd respondent asGeneralSecretary,hasperformedandhastoperformnumerousobligationsaccordingtolaw,
particularly in relation to the nomination lists of the partymemberstoParliamentary,ProvincialCouncils'andLocal
Authorities' elections. Any pronouncement by us on the legality of the appointment oftheofficebearersoftheCentral
Committee in these proceedings, is bound, in my opinion, to create endless confusionandneedlesschaosintheenormous
party organization and in its dealings with the general public and public authorities. For these reasons I woulddeclineto
extend our jurisdiction in these proceedings to what may be directlydonebyacourtofcompetentjurisdictioninan
appropriate declaratory action. In view of our decision on this aspect of the matter, we would refrainfromaddressingour
minds to the further question as to whether the petitioner, by his conduct, has impliedly waived the right tochallengethe
jurisdiction of the Central Committee on the principle that a person may not approbateandreprobate.Iwillproceedto
examine the petitioner's case on the basis that the members of the Central Committee of theSLFP,actingundercolourof
their office and in the ostensible discharge of their duties, had the competence de facto to expel him.
PARTY POLICIES AND DISCIPLINE
The constitution of the SLFP-P1 is prefaced with a statement of its policies which reads as follows :
The basic principle of the SLFP is Democratic Socialism. Namely, the middle path. There are a host of various individualand
collective freedoms which constitute the basic principles of Democratic Socialism. We consider them to be essentialfeatures
of a free democracy. We treat freedom of thought, freedom of expression, freedomofassembly,freedomtomanifestone's
religion, franchise etc. to be the freedom of the individual. We treat the freedom from want, fear, illiteracy andillhealth
as collective freedoms. Government by a parliament elected with the free vote of the people, efficiency andimpartialityof
the government machinery, and the independence of thejudiciaryareconsideredbyustobethebasicprinciplesof
We recognize the concentration of the entire effort of the state for the welfare of the people, providingequalopportunity
for all citizens, and the creation of a classless society as the fundamental features of socialism.
It is our conviction that, on the one hand, the journey towards socialism under a democratic institution,forthecreation
of a democratic society runs counter to dictatorship, and is achieved without compulsion and in keeping withthewishesof
the people, and that on the other hand, the privileges enjoyed by a small section of society, as a consequence ofdemocratic
capitalism needs control.
It is our view, that a third feature, namely, the religious and cultural resuscitation should be incorporated into the
aforesaid two fold social democratic principles.
Rule 26 of the SLFP constitution spells out the rights and duties of members as follows :
(i) It shall be binding on all members to adhere to all party policies and decisions ofthepartyandtotakestepsin
furtherance of the objects of the party and to popularize the party among the people.
(ii) Every member is required to comply with the rules andregulationsofthepartyandshouldconducthimselfina
(iii) It shall be the duty of every member to assist and support the candidates nominated by the party in all elections.
We are informed that a code of conduct for Members of Parliament, Provincial Councillors andMembersofLocalAuthorities
has been agreed upon by the Central Committee of the SLFP on 19.7.93, as evidenced by P62, after this application wasfiled.
No rules or regulations appear to have been made pertaining to discipline. None was cited before us.
THE PETITIONER, PARTY ELECTIONS AND INTRA-PARTY DISPUTES
The petitioner became a member of the SLFP in or about 1982andwasappointedthechieforganizeroftheBandaragama
electoral division of the Kalutara District in 1984. On 18.11.88 he wroteconfidentialletterP3tothe1strespondent
urging that immediate remedial action be taken in organizing party activity in the Kalutara District, if the 1strespondent,
who was the SLFP candidate for the presidential election at that time, were to secure the maximum numberofvotesinthat
district. At the general election held in 1989, he was elected Member ofParliamentfortheKalutaraDistrictfromhis
party, receiving the highest number of preferential votes in the district. At several SLFP parliamentary group meetingsheld
after the petitioner was elected to parliament, he urged the need for democratising thepartyandthenecessitytohold
party elections. The petitioner alleges that in the latter part of 1990, he had a long conversation with the1strespondent
at her residence, in the course of which he suggested that she steps down from theleadershipofthepartyinorderto
resurrect the party from the sorry plight it had fallen into by that time. 1st respondentadmittedsomeconversationwith
the petitioner, but stated that the petitioner told her that she should think more of the party than of herchildren she
denied that a suggestion was made by the petitioner to step down from the leadership. On 6.6.89thepetitionerreceiveda
circular letter from the 8th respondent who was the then General Secretaryoftheparty,addressedtoallMembersof.
Parliament of the SLFP, requesting them to submit proposals for the party's further course ofactionandrevisionofits
policies. The petitioner sent his proposals on 29.6.89 (P4) in response. Several proposals in P4 dealtwithdemocratisation
of the party structure, the constitution and party policies. In response to a circular letter dated30.1.89(P5)fromthe
8th respondent as General Secretary of the party, the petitionerforwardedresolutions(P6A)passedbytheBandaragama
electoral area organization, some of which urged democratisation of the party constitution. On30.3.90thepetitionerwas
appointed by the Central Committee to a committee comprising of 10 members of the parliamentary groupchairedbythe25th
respondent to consider ways and means of strengthening the party organization. The petitioner byletterdated2.4.90(P7)
submitted to the 25th respondent his proposals for consideration of the committee. Proposals in P4 included amendment ofthe
SLFP constitution to make it more democratic and broad based and the urgent necessity forholdingelectionsofallparty
organizations. Again on 20.9.90, the 9th respondent as General Secretary wrote to allMembersofParliamentoftheSLFP
calling for proposals for the formation of the future programme of the party. Thepetitionerinresponse,byhisletter
dated 1.10.90 (P10) pointed out to the 9th respondent that sending any proposals was a wastage of histimeandenergy,as
the proposals sent by him on earlier occasions did not appear to him to have beensubjectedtoanyconsiderationbythe
leaders of the party.
On 11. 11.90 the Central committee appointed a 4 member committee to consider proposalstoreorganizethepartyandfor
settling intraparty disputes which had surfaced at that time. By letter dated 25.11.90 (P11)thepetitionerwrotetothe
22nd respondent who was a member of that committee, setting out his proposals for the consideration of the committee. InP11
the petitioner among other matters stronglyurgedthenecessityofamendingthepartyconstitutionwithaviewto
democratise the party machinery and also made a strong case for holdingofthelongoverdueelectionstoelectoffice
bearers of the Central Committee, Executive Committee and the All-Island Committee. On 24.01.91theCentralCommitteemet
and approved the recommendations of the committee. It was decided that the 5th respondent be appointed theall-islandparty
organizer the 1st respondent indicated to the Central Committee that she desired to step down from the partyleadership
and a resolution to the effect that in June (1991) a new leader should be appointed was passed (P12),
Petitioner thereafter received a circular letter dated 25.1.91 from the 1st respondent statingthattheCentralCommittee
was pleased to appoint the 5th respondent as the all-island partyorganizerandrequestingthepetitionertogiveall
assistance to the 5th respondent in the task of reorganizingtheparty.Byletterdated1.2.91(P14)writtenbythe
petitioner to the 5th respondent as the newly appointed all- island party organizer, he again highlightedthenecessityof
democratising the party structure and holding of elections. The petitioner by letters 8.6.91 .(P15) and 21.6.91 (P16) atthe
invitation of the 5th respondent submitted comprehensive proposals directed towards reorganization of the party. Itisalso
in evidence that the petitioner expressed similar views about party elections at certain seminars organized by the party.
Later, the 1st respondent changed her mind regarding stepping downfromtheleadership.Byletterdated23.8.91(P59)
circulated by the 1st respondent, a copy of which was addressed to thepetitioner,shestatedamongothermattersthat
although she had already expressed her desire not to stand for election as president of the party, in view of adeepseated
conspiracy taking place to oust her from the leadership,shehaddecidedtocontinueaspresident.Thereferenceto
'conspirators' in that letter stirred up a hornet's nest in the party circles.
2nd respondent by his statements made to the media on 3.6.92 (P61 A) and on 20.9.92 (P61 D) announcedthatpartyelections
were coming soon. 1st respondent sent a circular letter dated 14.10.92 (P66) stating that arrangementswerebeingmadeto
hold elections of the party no sooner the atmosphere to hold such elections was conduciveandrequestedallconcernedto
desist from signing any document which would cause dissension within the party. About the time1strespondentsentletter
P66, it appears that there was a hue and cry for party elections coming from severalquarters.SLFPcouncillorsoflocal
bodies in the Galle District who met on 4.10.92 (P60D) with the active participation of the 25th respondent, who is amember
of the Central CommitteeSLFP bhikku organization which met on 8.10.92 (P60C) andsomeSLFPGampahaDistrictorganizers
headed by the 24th respondent, a member of the Central Committee, whometon20.10.92(P67),werealldemandingparty
elections. The Gampaha District party organizers sent a petition to the 1st respondent requesting amongothermattersthat
elections be held. The signatories to this petition were headed by the 24th and 5th respondents, both of whom are membersof
the Central Committee. The appointment of the 20th respondent as a Gampaha District organizer by the 1st respondent wasalso
condemned in that petition as being dictatorial.
Elections of the SLFP youth organization were held on 3.10.92 and the1strespondentpubliclyannouncedthattheywere
manipulated, while the 5th respondent in a statement to the media denied this allegation (P20E1, P20E2&P20E3).Elections
of the SLFP bhikku organization were held in October 1992 but the elections were anulled by the 1st respondent on theground
that they were irregular (P20F & P20F1). 5th respondent made statements to the mediacontradictingthatposition(P20F2).
The petitioner submits that the1strespondent'sviewsontheelectionsoftheyouthorganizationandthebhikku
organization, were dictatorial in that they were not expressed with the sanction or approval oftheCentralCommittee.It
was during this time when the 1st and the 5threspondentsclashedopenlythroughthemedia,thatthepetitionerwas
suspended by the 1st respondent by letter P23 of 16.10.92.
It appears that the non-holding of party elections, so vital to an organization which professes to further democracyinthe
country, has been a burning issue among party members. Petitioner submitted that the party was subjected to ridiculebyits
opponents on that score (P11). 2nd respondent in his affidavit said " it has not been expedient to holdsuchelection[for
the Central Committee] for variety of reasons, which had been accepted by a majority of the general membership of theparty,
including the parliamentary group and the general membership [sic] and the Central Committee appointed in 1986 hascontinued
to perform its functions without objection and the general membership including the petitioner submitted to its authority."
The statement is absolutely devoid of detail. As to what the variety ofreasonswere,Mr.deSilvaPC.wasunableto
enlighten us, but he submitted that the insurgent activities in the country to which several SLFP members had fallenvictim,
was one of the probable reasons. As against this, for the petitioner it was submitted that even thisreasondoesnothold
water, because since 1986 several elections were held inthecountryatthenationallevel,parliamentary,provincial
councils' and local authorities'.
VIOLATING PARTY DISCIPLINE FREEDOM OF SPEECH AND FREEDOM OF ASSOCIATION
A political parry is a voluntary association of individuals who. have cometogetherwiththeavowedobjectofsecuring
political power on agreed policies and a leadership. Cohesion is a sine qua non of success and stability whether apolitical
party is in power or in the opposition. To foster party cohesion discipline among its members becomesabsolutelynecessary.
Party disintegration has to be arrested by firm disciplinary measures that include expulsion which Article99(13)(a)of
our Constitution its recognizes. The members of a party areboundtogetherbyacontractwhichisusuallytheparty
constitution, from which arises contractual obligations of the membership. These obligations are either express or implied.
Mr. H. L. de Silva, P.C. commended to us the dicta of Sharvananda CJ. in the case of Yapa Abeywardene v.HarshaAbeywardene
and another (16). In particular, he drew our attention to the following passage from that judgment at page 7.
" The argument [based on freedom of thought and conscienceandfreedomofspeechandexpressionguaranteedunderthe
constitution] in support of this ground could have been addressed acceptably to a court of a century agowhenpartysystem
was in its embryo. But it overlooks the democratic development of a century.In1888famousparliamentarianJohnBright
could say 'I must follow my own judgment and conscience and not the voice of my leaders. But today thankstotheevolution
of the party system, democracy has assigned the individual member to the role of a cog in thepartywheelanditisthe
party that has become spokesman of the country's interests. The party system has reached the stagewheretheindividuality
of the average party member has scarcely an opportunityoffindingindependentexpression.Thepartycaucustendsto
override all opposition and once the party line is decided, the member becomes a little more thanarubberstampforits
In Yapa Abeywardene's case the point at issue was a violation of a directive given by thepartytovoteinfavourofa
particular bill. The justification alleged for Yapa Abeywardene's conduct wasthe'freemandate'theoryinrelationto
actions of parliamentarians. Perhaps the observations of Sharvananda CJ. could be understood in that context.Thesoundness
of that sweeping dicta was doubted in the case of Dissanayake and others v. Kaleel and others (supra) where Kulatunga J.was
constrained to remark " but he is not a lifeless cog liable to be subject to unlawfulorcapriciousordersofdirections
without remedy. " In the same case, Fernando J. remarked " I take the viewthatamemberhasnotbeenreducedtothe
position of a mere cog in the party machine bereft of any independence of action. While his relationship to thepartytends
to suggest that he has no independence, some of his constitutional functions are essentially, discretionary,quasijudicial
some even judicial." Mr. H. L. de Silva PC. submitted that in respect of non-constitutional functions ofamemberthe"
cog in the wheel"┬theory should still hold good. I am unable to agree with that proposition. Ifforinstance,theparty
gives a direction to a member in direct violation of a fundamental policy of the party, is that member meekly boundtoobey
such a direction?or if the party gives a direction to a member in flagrant violation of a term ofhiscontractwiththe
party, is such member expected to tamely submit to the direction? I am unable to subscribe to a propositionwhichtendsto
devalue the nature of the contractual bond of a political party vis-a-vis a member (and particularly a Member ofParliament)
to a relationship perhaps that of master and servant.
As the statement of policies in the SLFP constitution reveals, it isapartyunequivocallycommittedtotheidealsof
democracy. The contention of Mr. Wijesinghe, PC. in vindication of the impugned conduct of the petitioner, is hisconsistent
demand for party elections from his leaders receiving negative response. The petitioner questions the moral justificationof
his party calling for greater democracy in the country, when there are nopartyelectionsandthusnomanifestationof
democracy within the party itself. This scenario reminds me of the story narrated by theGreekbiographerPlutarch,about
Lycurgus, the 9th century B.C. traditional law-giver of Sparta. Lycurgus being asked why he, who in otherrespectsappeared
to be so zealous for equal rights of men, did not make his government a democracy rather than anoligarchy,replied,"Go
you and try democracy in your own house."
It was contended by Mr. Wijesinghe, PC. that the petitioner was bound by Rule 26 (1) of the party constitution (i) to "take
steps to fulfil the objects of the party " - democracy was one such object and (ii) to " popularizethepartyamongthe
people. " Those were responsibilities of a party member intermsoftheconstitution.Thestatementto'Lakdiva'the
excerpts from which form the foundation of thechargesagainstthepetitioner,contendsMr.Wijesinghe,wasmadein
furtherance of the objects of the party and to popularize the party among the people after the petitioner dismally failedin
his attempts to force the leadership to hold elections. Even the allegation madebythepetitionerthatthereexistsa
dangerous dictatorship within the party is referable to the non-holding of elections. It could be seen that all theexcerpts
in P27 except the reference to the late President Premadasa andtheUNPrelatetodemocracyandnon-holdingofparty
elections. It is idle to think that the Central Committee tookexceptiontothereferencemadetothelatePresident
Premadasa and the UNP, but in any event that reference too, indirectly (not remotely) relates to the lack of partyelections
and the resultant party disunity.
Mr. H. L. de Silva, PC. submitted that the petitioner has failed to requisition meetings of the ExecutiveCommitteeorthe
All-Island Committee, of both of which he is an exofficio member, by obtaining the signatures of 1/3rd oftheirmembership,
in terms of Rule 13 (ii) of the party constitution therefore, it was submitted, that the petitioner has notexhaustedall
the for a within the party, to ventilate his views before he spoke to the media. I see no force inthiscontentionbecause
in the circumstances in which the petitioner was placed, that was an impossible tasktohaveembarkedupon,withoutthe
blessings and contrary to the wishes of the leadership. As Mr. Wijesinghe, PC. points out, a similar attempt bytheGampaha
District organizers led by a senior party member and a memberoftheCentralCommittee-the24threspondent,proved
abortive (P67) and in any event the 1st respondent's injunction (P66) to desistfromsigninganydocument'whichwill
cause dissension within the party' was aninsuperableobstacletosigningorcollectingsignaturesforanoticeof
requisition. It was also pointed out that the 1st respondent's power to suspend a member under the constitution, whichpower
she never failed to exercise, was always menacing.
Passage of time has not staled the force of John Stuart Mill's statement that"ifallmankindminusonewereofone
opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing thatoneperson,
than he, if he had power, would be justified in silencing mankind. " It is this fundamental freedom of speech andexpression
including publication that is enshrined in Article 14 (1) (a) of our Constitution which is the supreme lawofthecountry.
Article 14 (1) (c) of the Constitution guarantees to every citizen the freedom of association.Thefreedomofassociation
places a voluntary self-limitation on the freedom of expression and that self-limitation is the foundationoftheexercise
of the freedom of association. How much of the freedom of expression has tobecompromisedforthesakeoffreedomof
association? The inter-play between these two freedoms is best expressed in the words of Fernando J.inDissanayake'scase
" The petitioners' case was presented throughout as if only their rights, and fundamental rights, wereinvolved.Theparty
rules involve all the other members as well. What of their right? Just as thepetitionersagreednottocriticisetheir
party and colleagues in public, without prior internal discussion,soalsotheirfellow-membersundertookareciprocal
obligation not to criticise the petitioners. That is not all. The petitioners sought torelegatethepartyrulestothe
lowest level in the hierarchy of norms. But Article 99 (13) (a) impliedly recognizes at least one aspect of thepartyrules
and discipline. More important, the rules of a political party are not a mere matterofcontract,butthebasisofthe
exercise of the freedom of association recognized by Article 14 (1) (c) ................. Oneoftheconditionsonwhich
party members agreed to exercise this fundamental right was by mutually accepting reciprocal obligations placinglimitations
on the exercise of the freedom of speech by each other, in the interests of their association. Hence no question ofsuperior
or inferior norms arises. Inherent in the two freedoms is the liberty to make adjustments............"
Petitioner firmly and honestly believes that all maladiesafflictinghisparty,whichiscommittedtotheidealsof
democracy, spring from the failure to hold party elections since 1986. He may be right in his opinion or he may be wrong
but that does not concern this court. The party constitution stipulates holding annual elections for the partyorganizations
and the leadership is bound, as far as the membership is concerned, to hold such elections annually orwithinareasonable
period determined by the Central Committee. No meetings of the Executive Committee or the All-Island Committee weresummoned
and thus the petitioner was deprived of the opportunity of placing his views before thosecommittees.Thepetitionertook
every possible step within the available party fora topersuadetheleadershiptoholdpartyelectionsandwhenhis
persistent pleas brought no results, in the best interests of his party, he spoke to the media. Thestatementto'Lakdiva'
was couched in moderate language and was expressed without any semblance of vituperation directed at any person. I am ofthe
view that in those circumstances the petitioner's impugned statements are justified as having been made intheexerciseof
his freedom of speech guaranteed under the Constitution.
MALA FIDES AND FAILURE TO OBSERVE PRINCIPLES OF NATURAL JUSTICE
In view of the conclusion already reached by me, it is unnecessary to dealwiththequestionsraisedonbehalfofthe
petitioner relating to mala fides of some members of the Central Committee, failure to observe principles of naturaljustice
in the decision making process, and as to whether the petitioner was differently treated from other members of theSLFPwho
chose to ventilate intra-party conflicts publicly in the media Particularly,inregardtothequestionsofmaliceand
differential treatment, I am glad that we have been mercifully saved from entering 'a political thicket'.
The application is allowed and I hold that expulsion of the petitioner from the SLFP by decisionoftheCentralCommittee
made on 2.6.93 was invalid. I make no order as regards costs. We deeply appreciate the assistancegiventousbylearned
WIJETUNGA, J. - I agree.
I have had the benefit of perusing the judgment of Dheeraratne, J. As I am not in agreement withit,Ihavewritten
this dissenting judgment.
The facts have been set out fully in the judgment of Dheeraratne, J. and it is unnecessary for metorepeatthemin
detail. The application rests largely on the legal issues that arise for determination.
The facts briefly are as follows
The petitioner had joined the Sri Lanka Freedom Party in 1982 and in 1984 he was appointed as the chieforganizerfor
Bandaragama electorate in the Kalutara District. In 1989 he was elected to the Kalutara District as a Member of Parliament.
In September, 1992 the petitioner made statements to the Island Newspaperwhichhadsubsequentlybeenbroadcastbythe
B.B.C. to the effect that the 1st respondent had been at the helm of the party for as long as thirty two years which wastoo
long. The petitioner had been suspended by the 1st respondent in exercise of the powers under Article 14(7)oftheParty
Constitution for the breach of Party discipline.
The petitioner had subsequently given an interview totheLakdivaNewspaper(1326)articlecontainingexcerptsofan
interview published in the Lakdiva Newspaper on 24.1.1993 which was a criticism of the leadership andparty.Ashowcause
letter (1327) dated 3.2.1993 was sent by the General Secretary of the party to the petitioner andfinallytheinquirywas
fixed for 1.6.93.
By letter dated 28.5.93 (P 38) the petitioner informed the Disciplinary Committee and stated that no purpose willbeserved
in his placing facts before the Committee which was not impartial and which was constituted bypersonswhowerenotduly
elected and ceased to hold office.
The petitioner was informed of his expulsion from party membership by letter dated 3.6.93. (P40)
The petitioner has applied to this Court in terms of the proviso to Article 99 (13) (a) of the Constitution challenging
his expulsion from the Sri Lanka Freedom Party. The Constitution empowers this Court to determine whether the expulsion ofa
Member of Parliament from a recognised political party or independent group which hebelongsisvalid.(theemphasisis
I am of the view, that this Court is not empowered to examine the merits of the decision expelling thepetitionerbut
is confined to a consideration of its validity. The question is not whether the expulsion is right or wrong. This isnotan
application by way of appeal or review of proceedings or order made in the District Court.
The principle contention made by the petitioner was that the Central Committee of the party wasnotavalidlyconstituted
On the material placed before me I am satisfied that the members of the Central Committee were defactoholdersofoffice
who at the time of the making of the impugned order of expulsion of the petitioner were de facto office holders.
Professor Wade, AdministrativeLaw(6thedition)page336,hasillustratedthewideapplicationofthedefacto
functionaries by a House of Lords case Scadding v. Laranta (17) where Lord Truno, L.C. remarks
" You will at once see to what it would lead if the validity of their acts, when in office, depended upontheproprietyof
their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. Itwouldcreate
uncertainty: with respect to the obedience to public officers, and it might lead also to persons,insteadofresortingto
ordinary legal remedies to set right anything done by the officers, taking the law into their own hands ".
I am unable to agree with the submission advanced on behalf of the petitioner that the de facto doctrine hasnoapplication
to domestic bodies like the Central Committee, the 36th respondent. I am oftheopinion,thattherearenolimitations
placed on the de facto doctrine which has a wide application. I am fortified by Professor Wade's comments at page 337.
" The de facto doctrine has a long history and has been applied to a wide variety of officers.Itwasevensaidtohave
applied to monarchy, so that it might validate acts done in the names of kings whosetitletothethronewasconsidered
illegitimate and who were kings 'in fact and not in law'. At the other end of the scale thedoctrinewasinvokedfroman
early date to uphold copyhold titles enrolled by stewards of manors who were not properly appointed ".
I am satisfied that the members of the Central Committee were acting with colour of office andinpursuanceofthat
office, made orders which are deemed to be valid in law. The members of the Committee have exercised their powers de facto.
There has been no prior direct proceeding in which the validity of their appointments or rights havebeenchallenged.
Their authority can be questioned only in proceedings which directly challenge their appointments. Rubinstin, statesinhis
treatise on Jurisdiction and illegality pages 205-206
" The mere fact the acts and decisions were made by a tribunal which has not been legally appointed isnotsufficient
to render them nullities. If a Judge is recognised de facto, his authoritycanbequestionedonlyinproceedingswhich
directly challenge his appointment or which seek to prevent him from hearing a case. Any other method of attack is doomedto
A corollary to the doctrine of de facto office holder is the rule that a collateral attack onthelegalauthorityofthe
office holder cannot be made when the validity to an act done by the de facto holder of the office is being challenged.
The petitioner is in these proceedings challenging the validity of his expulsion by the Central Committee.Itisnotopen
for the petitioner in these proceedings to question the legal authority of the Central Committee. This should have beendone
before the expulsion in a direct proceeding for a declaration that the Central Committee had ceased to hold office.
I am in agreement with Mr. de Silva's submission that had the District Court action filed on 31.5.93 been filedearlierand
had the petitioner obtained a declaration that the members of the Central Committee had not been dulyelectedintermsof
Article 13 of the Party Constitution, then any subsequent expulsion would have been of no legal effect. It shouldhavebeen
done before the expulsion by a direct proceeding seeking a declaration that the Central Committee member had ceasedtohold
office. In Re K. Stephen Perera (15) held that the right of a de facto Judge to hold officewithcolourabletitletohis
office, cannot be questioned in collateral proceeding. His authority can only be questioned in which itdirectlychallenges
the validity of his appointment.
I am satisfied that there has been no breach of the rule of natural justice. A hearing was offered but thepetitionerchose
not to avail himself of it. The order cannot be characterised as unreasonable in the Wednesbury sense (1)forbadreasons.
The petitioner's attack on the leadership and the party in the Lakdiva newspaper is a breach of partydisciplinebymaking
public criticism of an internal party matter. The petitioner could havealsoresortedtoArticle31(2)oftheParty
Constitution to persuade 1/3rd of the membership to his views. Instead he resorted to a scrullious attack ontheleadership
to the public, in the Lakdiva newspaper. He eschewed the domestic forum of the party. I am unable to say that theactionof
the Central Committee was " unreasonable " in the circumstances of this case.
The Central Committee of a political party must be allowedadiscretiontodecidewhatsanctionsareappropriatefor
violations of party discipline. A party is entitled to sever the linkbetweenamemberandhisparty,terminatinghis
contractual relationship. A collateral attack is disallowed in these proceedings and the expulsion by theCentralCommittee
of the petitioner is valid.
I will now proceed to consider the plea of approbation and reprobation which was placed in the forefront ofthesubmissions
made by Mr. de Silva. The principle is that a person cannot both approbate and reprobate. A person is not allowedtoaccept
a benefit and reject the rest.
It is the Central Committee which approved the petitioner's nomination as acandidateattheParliamentaryElectionsof
1989. As submitted by Mr. de Silva when the petitioner tendered his nomination paper as a candidate of the SLFP hemadethe
representation that the signature of the SLFP contained thereinwasthesignatureoftheSecretarywhowastheduly
appointed Secretary of the party.Further,heacceptedthepositionthattheCentralCommitteewhichapprovedhis
candidature was a duly constituted body, which had the required legal competence to approve his candidature. Havinggotthe
benefit of the acts of the Central Committee and of the Secretary oftheparty,itiscertainlynownotopentothe
petitioner to question the validity of the appointment of the Central Committee and the office bearers of the party.
The petitioner cannot be permitted to take up inconsistent positions. In short, hecannotbepermittedtoapprobateand
reprobate. This principle is a bar to his attacking the validity of the competence of the Central Committee, in anendeavour
to avoid the consequences of his expulsion by the Central Committee.
It was urged on behalf of the petitioner that he had made representation to his party and as thiswasunheededhehadno
forum in which to express, his views and he was justified in raising issues in public.
A Member of Parliament owes allegiance to his party in government or in opposition as the case may be. Accordingly, hevotes
in the divisions of the House in compliance with the instructions of the party whips. A Member of Parliament is subjectedto
three interests (1) national interest (2) party interest(3)constituencyinterest.Wherethepartyinterestis
involved there is no justification in going public. Any dissent must be raised and discussed internally within thepartyas
this is purely a domestic matter. The petitioner is entitled to canvas reforms within the party. He must find anopportunity
to get his views accepted within the party, at Parliamentary party meetings, unofficial groups. The petitionerisamember
of Parliament. He could canvas support for his views in the All Island Committee, Executive Committee and get the supportof
1/3rd of the membership to set the party machinery into operation for his reforms.
The petitioner has not adequately employed his party forums provided by the Party Constitution instead he has raisedmatters
in public vide (P26).
I am of the opinion, that where a person takes up internal matters in public and tries to destroy the party,heissubject
to party discipline and must take the consequences for it.
The petitioner's standing and weak support is reflected by the voting of the Central Committee which has a cross
section of party opinion and consists of the party hierachy.
(a) 18 voted for petitioner's expulsion.
(b) 4 voted against his expulsion.
(c) 2 members abstained.
(d) 4 members absent.
The majority vote was for the petitioner's expulsion. The opinion of the disciplinary committee wasunanimous.Itis
clear that the faction the petitioner represented has only minimal support.
I am inclined to agree with the submission of Mr. de Silva that as the petitioner was unable to muster support of 1/3rd
of the membership of the All Island Committee and Executive Committee for the purpose of tabling a resolutionheresorted
to public vilification of the party and the leadership.
I am of the opinion, in the circumstances and facts of this application, there was no justification for thepetitioner
to abandon the existing party forum and to voice these matters in public.
The next question for consideration is to what extent the right of freedom of speechofamemberofParliamentis
restricted by the requirement of party discipline. The criticism of policies within a party is legitimate butwhendonein
public the answer depends on the facts and circumstances of each case.
The petitioner admits he made a statement to the Lakdiva newspaper on 24.1.93.InowrefertoP27whichinteraliahas
extracts made by the petitioner to Lakdiva newspaper as follows
" We Gall the S.L.F.P. a democratic party. We ask for a mandate to establish democracyinthiscountrybutthereisno
democracy in our party itself. A very dangerous type of dictatorship is prevailing in our party. This is theprimaryreason
for this dispute.
There has been only one leadership in the SLFP for the last 24 years.Thisisathingthatshouldneverhappenina
political party working under a democratic structure. However, good may such leader be, it is a gross injustice totheable
and educated lot in the lower strata of the party who represent several generations andwhoalwaysstagnateinthesame
position. Therefore, a non-stop pressure from the bottom to the top is inevitable.
This is the main and primary reason for this dispute. It is an extraordinary thing if internal conflicts do notariseina
party like this that calls itself democratic. The simple answer that this is a fight between capitalism and socialism isnot
valid in fact.
Had we not made this struggle, there would have been no room for the existence of any active politics intheSLFPbynow.
What new thing have we given to the people? We have been stagnating in the same place for a number ofyears.Wecannotgo
forward without creating such a change and innovation as this inside our party.
The progress and existence of the party rests on thevictoryordefeatofthestrugglewearecarryingonforthe
establishment of democracy. There are two camps in the party now. A party so divided cannot March towards a specific goal.
No election of office bearers has been held in this party for the past eight years. This alone clearly shows thattheparty
leadership has accepted the position that it cannot win in a just election held to elect office bearers.
If we are to challenge the anti-democratic and dictatorial leadership of a political party like the UNP, we shall firstmake
ourselves strong. We shall have a leadership that can guide us towards one goal. But when it is not so................?
Administrative structures of all descriptions in this country are in thehandsoftheUNP.TheUNPhasbeenableto
strengthen its power in whatsoever manner in all political and administrative spheres. At a timewhenallthesestrengths
are with him, I do not believe that President Premadasa will hold such a so called " just " election. Idonotthinkthat
Premadasa can be defeated in a " just " election. He will hold such elections that he can win.
Therefore, Premadasa can be defeated only through a true struggle by the people. Such cruel rulers like thesecouldnotbe
driven away through democratic methods. If we are to chase Premadasa away by any means we must haveatrueleadershipfor
that purpose. Today what we lack is only the necessary leadership. "
It seems to me on a consideration of the above statements thatMr.deSilvaiscorrectinhissubmissionthat,that
statement contained in P27 constitutes acondemnationandvilificationofbothpartyandleadership.Theinevitable
consequence of the statements is to lower the estimation of both the party and the leadership in the eyes of the people asa
As stated by Kulatunga, J. in Jayatillake v.'Kaleel (18),
" A M.P. who uses his right to freedom of speech to create such a situation, whether as leader or as supporter, violatesthe
party obligations and exceeds the bonds of such freedom : he thereby forfeits the protection of Article 14(1)(a)ofthe
A member of Parliament is entitled to freedom of speech in public but subject to the constraints ofpartydiscipline.
The comments that are disparaging and injurious to the party and leadership would not give a person the protection.
The petitioner has raised the allegation of malice. The law places a heavy burden on the party whoallegesmalafides.In
the present case, I am of the opinion, that the material placed before this Court in support of the allegation of malafides
is tenuous, insubstantial and wholly lacking in particulars and vague. I hold it has not been established.
It is necessary to emphasize that the relationship of a member with his political party rests onacontractualbasis.The
expulsion of a member is the severance of the formal contractual link between the member and the party.
Where there has been a breach of party discipline a party has the discretion to mete out punishment which isappropriatein
the circumstances of each case. The primary purpose of a political party is the acquisition of power. The unity of theparty
is fundamental consideration and many of the issues are in substance of a political nature. A party will have to decidefrom
time to time what course of action is best suited to the achievement of the preservation of the unity of the party. Itisa
reasonable proposition that the assessment of these matters fall within the realm of politicaljudgmentandthescopeof
judicial intervention is restricted.
This Court's constitutional jurisdiction is confined to the validity of the expulsion and there isnowarranttotrespass
upon areas where decisions are matters purely of political judgment, unless manifestly unreasonable.
The limitations of the jurisidiction of this Court have been correctly and precisely expressed by Kulatunga, J. in S.C.
Application Nos. 1 and 2/92 in Jayatillake v. Kaleel (18)
" A political party must be allowedadiscretiontodecidewhatsanctionsareappropriateforviolationsofParty
disciplineand if the Party decides, bona fide, to expel any member guilty of repudiating the Party, this Court will notin
the exercise of its constitutional jurisdiction impose such member on the Party. If that isdone,ParliamentaryGovernment
based on the Political Party System will become unworkable ".
I hold that the expulsion of the petitioner is valid for the foregoing reasons and I dismiss the application with costs.