Legal Services and Laws of Sri Lanka
SLR - 1994 Vol.1, Page No - 319
JAYATILLAKE AND ANOTHER
KALEEL AND OTHERS
FERNANDO, J., KULATUNGA, J. AND
SC APPLICATIONS 1 & 2/92
FEBRUARY 3RD, 5TH, 6TH, 7TH AND 11TH, 1992.
Expulsion from membership of political party - Conduct. violative of the provisions of the party Constitution-Signingof
impeachment motion against the President and revoking the signatures -RecommendationofDisciplinaryCommitteeofPar"
Working Committee - Constitution, Articles 10, 14(a), 38(2)(a) and 99 (13)(a)-ConstitutionalrighttosignNoticeof
resolution of impeachment - Signing the Notice without knowing contents - Understanding that no disciplinary action wouldbe
taken against those who retract - Right to lead oral evidence - Affidavit sworn before deponent's ownProctor-Delegation
of powers - Natural justice - Audi alteram partem rule - Oral hearing - Fair hearing -'Observances"and"Explanations"-
Internal discussion - Deceitful conduct - Misconduct - Rules 3(d), 17(2) of the Party Constitution -Promissoryestoppel-
Future misconduct - Bias.
Two members of Parliament, Ariyaratne Jayatilleke and S. A. Muthu Banda thepetitionersinapplicationsNo.1and2/92
respectively challenged their expulsion from the United National Party a recognised political party hereafter referred toas
the "party" in their respective applications made in terms of Article 99(13)(a) of the Constitution. In lateAugust1991a
sudden crisis occurred in the party in consequence of a notice of resolution (hereafter referred to as "the notice") forthe
removal of the President in terms of Article 38(2)(a) of the Constitution, being giventotheSpeaker.Eightmembersof
Parliament were expelled from the Party by a resolution of the Working Committee passed on 06.09.91. Petitions filed bythem
were dismissed in Dissanayake v. Kaleel SC (Special) Nos. 4 to 11/91 - S.C. Minutes of 03.12.91.
The petitioner in SC 1/91 (hereafter referred to as 1st petitioner) is an Attorney-at Law and hewastheProjectMinister
for Minerals and Mineral-based Industries. He admittedlysignedtheNoticeandclaimshedidsoinpursuanceofa
Constitutional right, power or authority. On 18.09.91 he resigned from his Ministerial post. On19.09.91hewrotetothe
Minister of Industries that he signed the notice on a bona fide basis without reading it and withoutunderstandingwhatit
was all about. Earlier by letter dated 30.08.91 (R1) the two petitioners and 114 other members of the(UNP)Groupinformed
the Speaker that they do not support the said Resolution and those of them who had signed it werewithdrawingandrevoking
their signatures and consent to it and as thus the Resolution did not have the requisite number of signatories underArticle
38(2)(b), it should not be placed on the Order paper or Order Book of Parliament. On 02.09.91 the group passedaresolution
(R2) emphatically declaring and confirming its confidence in the President and stating that the signatures of theGroupand
some members of the opposition had been obtained through misrepresentation and deceit and called upon the Speakertoreject
the illegal, unconstitutional and malicious move to remove thePresident.Thisresolutionwassignedalsobythetwo
petitioners and the 114 others. R1 and R2 were handed over to the Speaker on 03.09.91. In the letter totheSpeakerorin
the Resolution of the Group, the 1st petitioner does not claim that he signed the twodocumentswithoutreadingthem,or
through mistake, misrepresentation or compulsion.
The petitioner in S.C. 2/92 (2nd petitioner) also signed theNoticeinpurportedpursuanceofaConstitutionalright.
Although in Court he admitted signing R1 and R2, in an interview to the Divaina (of 13.09.91) and at aPressConferenceat
Mr. Athulathmudali's residence (Lankadipa of 23.09.91) he denied signing R2 and requestedaninquirybytheExaminerof
Questioned Documents. There was thus not even a suggestion that R1 and R2 were signed through mistake,misrepresentationor
compulsion or that he did not intend to withdraw and revoke his signature on the Notice.
There was an understanding that no disciplinary action would be taken againstthosewhoretractedtheirsignatures.The
Speaker on 08.10.91 announced that the Notice did not havetherequirednumberofvalidsignaturesandcouldnotbe
proceeded with. A no-confidence motion was moved against the Speaker.
By letter dated 09.10.91 to the Chief Government Whip (theWhip)bothpetitionersrequestedafreevoteonthe'No-
confidence' motion in the exercise of their Constitutional Right and said theyintendedtovoteforthemotionasthe
Speaker had violated their privileges as Government Members of Parliament by making a wrong statement as to thevalidityof
the Resolution.' The Group met on 09.10.91. The two petitioners were absent without excuseorreason.Itwasunanimously
decided to vote against the "No-confidence" motion. This decision was conveyed about 10.00 a.m. on 10.10.91 in Parliamentto
the 2nd petitioner by letter dated 09.10.91 directing him to be present and to vote against the Noconfidence"motion.The
decision however could not be conveyed to the 1st petitioner as he could not be contactedandashewasnotpresentin
Parliament on 10.10.91. The 1st petitioner did not attempt to ascertain what decision had been reached on his request inhis
letter of 09.10.91 for a free vote. On 10. 10.91 both petitioners were absent at voting time and didnotvoteagainstthe
motion. The question of disciplinary action against the petitioners and two others was considered bytheWorkingCommittee
on 04.11.91. While it was decided not to take action against the two others (although one had not voted againstthemotion)
as both had given a written undertaking not to work against the Party policies, in regardtothetwopetitionersitwas
decided to await the judgment in the cases filed by eight other expelled members. Thejudgmentwasdeliveredon03.12.91
affirming the expulsion. The Disciplinary Committee of the Party's Working Committee met at 7.00 p.m. onthesamedayand
having considered the Report of the Disciplinary Committee decided that the General Secretary (2nd respondent)shouldwrite
to the two petitioners to be present at a meeting of the Working Committee to be heldon06.12.91at8.00p.m.forthe
purposes of discussing their conduct as Members of the Party as appeared from their letters of 09.10.91. No particularswere
given. Letters dated 03.12.91 were sent by the Secretary to the petitioners but the petitioners did not receivethemonor
before 06.12.91. The Working Committee met on 06.12.91 and resolved to expel the petitioners from thePartywithimmediate
effect. By letter dated 09.12.91 the Secretary informed the petitioners oftheirexpulsionsettingoutsixreasons.On
09.12.91 before receiving the letter of expulsion the 1st petitioner wrote to the Secretary (2nd respondent) explainingthat
he was absent as the letter of 03.12.91 was received after 06.12.91. On 12.12.91 the 2nd petitioner wroteinsimilarterms
protesting that the steps taken against him were illegal. Neitherpetitionerrequestedanotheropportunityofappearing
before the Working Committee. The Divaina of 10.12.91 reported the 1st petitioner as saying inter alia that heandthe2nd
petitioner would join the Democratic United National Front (DUNF) and address the publicatralliesoftheLalith-Gamini
Group. The petitioner did not deny or explain this newspaper report.
In the letter of expulsion thepetitionerswereinformedthatiftheysodesiretheycouldforwardtheirwritten
"observations" stating their position before 27.12.91. The petitioner replied on26.12.91answeringtheallegations.The
Working Committee met on 30.12.91 and after considering the replies of the petitioners decided nottoalterorreconsider
the decisions reached on 06.12.91. This was communicated to the petitioners on the same day. On 03.01.92thetwopetitions
were filed. An application was made to lead oral evidence on behalf of the petitioners.
The essence of the allegations against the Petitioners was:
1.(a) Signing the Notice of resolution without prior internal discussion within the Party
(b) Continuing to support that Notice despite revocation andretractionoftheirsignatures,withoutpriorinternal
2.Deceitful conduct towards the Party in regard to such revocation and retraction, as evidenced by theirsubsequentconduct
(namely, their continued support of the Notice and their letter of 09.10.91
3. absence from Parliament on 10.10.91 and failure to vote with the Group, and failure to tender any reason or excuseupto
4.Associating with the 8 expelled members inapubliccampaignagainstthePartyandleadership,andtheExecutive
Presidential System, without prior internal discussion.
1.It is the substance of the charges and not the form that is important.
2.The application to lead oral evidence was seen to be an attempt to cure the defects in the affidavitsandnottoenable
the Court to determine which of the two conflicting versions was more probable and credible, and therefore disallowed.
3.An affidavit sworn before the deponent's own Proctor ought not to be received in evidence. Yetheretheaffidavitswere
not rejected because Counsel for the respondents did not object to their reception.,
4.The Working Committee had delegated disciplinary powers to deal with the petitioners.
5(a).The audi alteram partem ruleappliesandtheproceedingsoftheWorkingCommitteeconsideredindependentlyof
subsequent letters and events, were in breach of that rule because
(a) the notice given was inadequate,
(b) the notices did not specify the allegation against the petitioners and were no more than an invitation for a decision.
(c) the Working Committee had several documents relevant to the Petitioners' conductbutdidnotdisclosethesetothe
Petitioners and invite their observations.
Yet to judge compliance by reference to the use of a specific form or formula, or the observance ofaparticularprocedure
or process, would inevitably confine and constrict a dynamic and expandingprincipleofsubstantialfairnesswithinthe
stifling and static technicalities of form and procedure. Thus the question whether the Petitioners have been deniedafair
hearing, or a fair opportunity to state their case, can never be made todependonwhethertheywereaskedmerelyfor
"observations" and not for "explanations".
(b) In the context of all that happened in December 1991 the four days allowed to the petitioners (of which they neededonly
three) were sufficient to state their case and the manner in which they did so, had a direct bearing on the furtherquestion
whether natural justice required an oral hearing and additional evidence.
6.A Member of Parliament has a constitutional right to sign a noticeofimpeachmentintheexerciseofanindependent
discretion and this does not extend to the signing of a document, contents unseen.Thequestionisnot1stpetitioner's
responsibility or accountability aftersigning butratherwhetherheexercisedhisdiscretionbeforeaffixinghis
signature. Had the document related only to 1st petitioner'spersonalaffairsitmighthavebeenamerequestionof
responsibility or accountabilitybut this was a public matter relating to Constitutional powers anddutiesanditwasa
grave misuse of a Constitutional right to have signed, without knowledge of its contents, an indictment of themostserious
kind known to our law.
The petitioners did not deny that there was no prior internal discussion, but claimed only that this question didnotarise
because the Notice was signed in the exercise of a Constitutional right.
7. Once the petitioners represented to theSpeakerandtotheGroupthattheyretractedtheirsignatures,alleging
misrepresentation, deceit and malice, they could no longer be heard to say that the notice was valid, or that they signedit
in the exercise of a Constitutional right (for they did not claim that the retraction was void). Here too they didnotdeny
theabsence of prior internal discussion before continuing to support the notice.
8.The petitioners were charged with deceitful conduct.Theirsubsequentconductandtheirlettersof09.10.91
reasonably give rise to the inference that their retractions were not genuine.Their-subsequentconductandlettersof
09.10.91 establish deceitful action towards the Party and the Group.
9.The petitioners admitted their absence from Parliament at voting time on10.10.91andmerelydeniedthatthis
constituted a breach of Party discipline. The issue was that the Petitioners were asked to state their position and theydid
so. But they failed to state factual matters peculiarly within their knowledge.
10.In respect of the first three allegations the primary facts were not in question. Whetherthosefactsestablished
deceitful conduct was a matter of inference. Whether they established misconduct warranting expulsion was amatteroflaw.
That misconduct would have brought the Party into disrepute (Rule 3(d) ofthePartyConstitution),wascontrarytothe
directive of the Group (Rule 17(2), and was generally in violation of fundamental obligations of loyalty and honesty owedto
the Party and to fellow members.
11.In the context of the petitioners course of conduct there is no denial of the fourth allegation. Assuming infavour
of the petitioners that such criticisms were, or might have been, within the scope of their fundamental right tofreedomof
speech, yet the gravamen of the charge is the undoubted lack of prior internal discussion.
12.This is not a case where the petitioners had asserted that the expulsion decision of 06.12.91 was voidandrefused
to participate in the subsequent proceedingsor participated without prejudice to that position. Here the Petitionerschose
to participate in the subsequent proceedings, they were afforded an opportunity to state their case, and did sothefactors
and circumstances were not at all complex, and they could without any difficulty have stated theircaseinthreeorfour
daysand when they did so, the facts ceased to be in dispute except in regard to the fourth allegation thereuponanoral
hearing became unnecessary in regard to the first three allegations. They were, however, entitled to particulars and anoral
hearing in regard to the fourth allegation but their pleading in Court indicated that on the fourth allegation too thefacts
were not really in dispute. In any event, the other three allegations were sufficiently grave to renderexpulsionaproper
and appropriate penalty, and the defect in regard to the fourth was not fatal.
13.While natural justice entitles a person to a fair and accurate statement of the allegations againsthim,themere
fact that he had not been given formal notice of all the matters in which his conduct was to be called in question,didnot
necessarily entitle him to contend that the inquiry was in breach of the audi alteram partem rule.
14.In view of the fact that -
(a) the initial breach of natural justice was not deliberate,
(b)action was not taken to enforce, or to make legal consequences flow from the order of expulsion, and the factthat
the Petitioner's participation in the subsequent proceedings gave the Committee a locus paenitendiae.
(c) the allegations were fairly and adequately, though not fully and precisely communicated, and
(d) a fair opportunity was given to the petitioners to state their case, and an oral hearing became unnecessary asthe
facts were undisputed in consequence of their replies, thePetitioners'casehadreceived-overall-fullandfair
consideration, and a fair result had been reached by fair methods. Thisisdespitethe,factthat(a)theelaborate
'Guidelines for Disciplinary Inquiries' adoptedby the Working Committee had not been followed and (b) thePetitionershad
no opportunity of being heard in mitigation. The guidelines provide an exemplary procedure but they were not bindingonthe
15.Overall there had been a fair hearing and as for mitigation, the misconduct was so seriousastomakemitigation
impossible. In any event on 09.12.91 the Petitioners had virtually repudiated the Party and cast their lot with the DUNE
16.The freedom of speech in public which an MP is entitled to is constrained by the requirements ofPartydiscipline.
Criticism or even condemnation of policies or ideas within a Party are legitimate even if itweretoweakenthe party's
position in the country for the time being. Inappropriatecircumstances,evenpubliccriticismofPartyPoliciesor
personalities may become reasonable. However it is not permissible for a group of dissidents whoseektosecureeffective
control of the Party on account of irreconcilable differences with the Party Leadership to conduct a campaigncalculatedto
destroy the Party and yet retain their status as MPs belonging to such Party in Parliament. Our Constitution does notpermit
a Party within a Party. An MP who uses his right to freedom of speechtocreateacrisissituationviolateshisParty
obligations and forfeits the protection of Article 14(a) oftheConstitution.Suchconductcannotbedescribedasan
exercise of the right of freedom of thought and conscienceguaranteedbyArticle10oftheConstitution.Disciplinary
proceedings can then validly be taken.
17.Although the petitioners were signatories to R1 and R2 and the Party hadpubliclydeclaredthatnodisciplinary
action would be taken against such signatories, there was no promissory estoppel created. There is an admissioninR2that
the impeachment motion was malicious. By disowning the Notice the petitioners made amends for theirmisconductandthereby
acknowledged their commitment to the Party. By such act they obtained exemption frombeingdealtwithforviolatingthe
Party Constitution by reason of their misconduct in signing the motion without firstraisingtheissueswiththeParty.
There was no promise by the Party to refrain from takingdisciplinaryactionagainstthemforfuturemisconduct.They
dishonoured their undertaking in R2 and showed beyond doubt that theyhadresumedtheirmisconduct.Heretherewasno
promise affecting legal relations between the parties. The party did not contract with the petitioners to confer on themthe
privilege of persisting with their misconduct without sanction.
18.A reasonable inference is that even at the time of signing R1 and R2, the Petitioners were loyal tothedissidents
and signed these documents as a colourable device to avoid disciplinary action which might have ledtothelossoftheir
Party Membership and their status as MPs.
19.The rights of the petitioners to Party Membership arecontractual.Atthetimeoftheirexpulsion,theyhad
repudiated the UNP and were de facto members of the DUNFand their expulsion constituted nothing more than the severanceof
the formal link between them and the Party. The decision to expel the petitioners is not vitiated by bias.
Cases referred to:
1.Dissanayake v. Kaleel SC (Special) Nos. 4 to 11/91 - SC Minutes of 03.12.91.
2.Pakir Mohideen v Mohemadu Cassim  4 NLR 299.
3. Cadar Saibu V. Sayadu Beebi  4 NLR 130.
4. Ridge v. Baldwin  AC 40, 132.
5.Stevenson v. United Road Transport Union  3 All ER 29, 41.
6.Labouchere v. Whancliffe  13 Ch. D 346, 351.
7.Davis v. Carew-Pole  1 WLR 833.
8.Russell v. Duke of Norfolk  1 All Er 109.
9. Posluns v Toronto Stock Exchange  67 DLR (2d) 165.
10.De Verteuil v. Knaggs  AC 557118 LT 758.
11. Pillai v. Singapore City Council  1 WLR 1278. 1286.
12.Stringer v. Ministry of Housing  1 All ER 65, 75.
13.Calvin v. Carr  2 All ER 440, 448, 449, 452.
14. Joseph Perera v. Attorney-General SC Applications No. 107 - 109/96 - SC Minutes of 25.05.87.
15. Dissanayake v. Sri Jayewardenapura University  2 Sri. LR 264.
16. Austin v. Keefe 1971 US 402, 415, 419.
17.John v. Rees  2 WLR 1294, 1332 (citing unreported case of Fountaine v. Chesterton).
18. Fisher v. Keane  XI Ch. D. 353, 360.
19. R v. Immigrational Tribunal ex p. Mehmet  1 WLR 795.
20. Sloan v. General Medical Council  2 All ER 686.
21. Board of Mining Examination v. Ramjee AIR 1977 SC 965.
APPLICATION under and in terms of Article 99(13) (a) of the ConstitutionchallengingexpulsionfromrecognisedPolitical
L W. Athulathmudali PC with R. C. Gooneratne, Dr.RanjitFernando,Mahendra Amerasekera,DhamsiriFonseka,T.M.S.
Nanayakkara, S. J. Liyanage, Nigel Hatch, Nalin Dissanayake,MissRanjiniMorawaka,MissHyacinthFernandoandM.B.
Handukumbura for petitioners.
K. N. Choksy with S.C. Crosette-Tambiah, Daya Pelpola, S. J. Mohideen,L.W.Jayawickrema,A.L.B.Brito-Mutunayagam,
RonaldPerera and Lakshman Ranasinghe for 1st to 4th respondents.
No appearance for 5th respondent.
February 28th, 1992.
Two Members of Parliament applied to thisCourt,bypetitionsintermsofArticle99(13)(a)oftheConstitution,
challenging their expulsion from the United National Party ("the Party"), a recognisedpoliticalparty.Thequestionsof
fact and law involved are almost identical, and both petitions were heard and determined together.
1. THE FACTS
In late August 1991 a sudden crisis occurred in the Party, in consequence of a notice of resolution ("theNotice")forthe
removal of the President, in terms of Article 38(2) (a) of the Constitution, being given to theSpeaker.EightMembersof
Parliament were expelled . from the Party by a resolution of the Working Committee passed on 6.9.91. Petitions filed bythem
were dismissed by this Court Dissanayake v. Kaleel (1)
The Petitioner in S.C. 1192 (the "1st Petitioner") is an Attorney-at Law, who was Project Minister for Minerals andMineral-
based Industrieshe admittedly signed the Notice, and claims that he did so in pursuance of aConstitutionalright,power
or authoritythree weeks later, by letter dated 18.9.91, he tenderedhisresignationfromhisMinisterialpost ina
personal letter dated 19.9.91 (P4) to the Minister ,of Industries he explained the matters which led him to resign.Inthat
letter he said:
"Coming to [the] immediate issue, I was never a member of the group that started the present movement. When the petitionwas
brought to me, 1 signed it on a bona fide basis, even without seeing it. In Parliament, we have put oursignaturestomany
other such documents. At the group meeting held immediately after this so-called plot, I andmanyotherswerenon-plussed
and remained silent spectators like some characters in a novel, unable to find a path to tread."
(Throughout this judgment I haveaddedemphasistokeyphraseswhichCounselhavesubjectedtoscrutinyintheir
submissions.) It is clear that he had signed that Notice without reading it,andwithoutunderstandingwhatitwasall
about, for he added:
"But as time passed and the facts, accusations and counteraccusations started flashing either way I began to understandwhat
this was all about ... the issue of certain allegations against ... the President."
The "group meeting" referred to was a meeting of the Government Parliamentary Group ("the Group") held on 2.9.91. By letter
dated 30.8.91 (R1) the two Petitioners and 114 other Members of the Group informed the Speaker that:
"We write to hereby inform you that we do not support the said Resolution.
Those of us who have placed our signatures thereto do hereby withdraw and revoke our signatures and consent thereto.
In the circumstances, the Resolution does not have the requisite number of signatoriesunderArticle38(2)(b)entitling
yourself to place the same on the Order Paper or Order Book of Parliament.
The Resolution should therefore not be placed on the OrderBookorPaper.Doingsowillbecontrarytotheexpress
provisions of the Constitution referred to above."
On 2.9.91, the Group passed a resolution (R2) which emphatically declared and confirmed its confidence in thePresidentand
the policies of the Governmentvouched thatthePresidenthadupheldtheConstitution,andhadneverviolatedthe
Constitution, committed an unlawful act, or abused powerrejected the"clandestinemove"toremovethePresident and
condemned those who had "obtained thesignaturesofcertainGovernmentandOppositionMembersofParliamentthrough
misrepresentation and deceit". The Group expressed dismay that the Speaker had entertained the Notice "withmuchhasteand
without verification", and called upon the Speaker to "reject the illegal, unconstitutional and malicious move to removethe
President". This resolution was signed by the Petitioners and 114 other Members. R1 and R2 werehandedtotheSpeakerin
person by the signatories including the Petitioners, on 3.9.91. It was clear from P4 that the Noticewasatleastbriefly
discussed at the Group meeting. Although the 1st Petitioner states that there was only a general statement bythePresident
t denying the allegations made, he does not claim that he signedthosetwodocumentswithoutreadingthem,orthrough
mistake, misrepresentation or compulsion.
The Petitioner in S.C. 2/92 (the "2nd Petitioner") also signed the Notice in purported pursuance of aConstitutionalright.
In his petition to this Court he specifically admitted signing the letter of 30.8.91 and the resolution of2.9.91.However,
in an interview to the "Divaina" (R15C of 23.9.91) and ataPressConferenceatMr.Athulathmudali'sresidence(R15D,
"Lankadipa" of 23.9.91) the 2nd Petitioner emphatically denied signing the resolution (pleading support forthePresident),
addressed to the Speakerhe requested an inquiry by the Examiner of Questioned Documents to determinewhohadforgedhis
signature. When those two documents were produced by the 2nd Respondent, as R1 and R2, the 2nd Petitionerfiledacounter-
affidavit containing an unqualified admission of those documents. There is thus not even a suggestion in this CourtthatR1
and R2 were signed through mistake, misrepresentation or compulsionor that he did not intend towithdrawandrevokehis
signature on the Notice. The newspaper reports were not denied or explained contemporaneously, or even inthepleadingsor
submissions in this Court. I am thereforecompelledtoconcludethatthe2ndPetitionerfalselydeniedsigningthe
Although Mr. Athulathmudali, P.C., submitted to us that the Petitioners_ had signed R1 andR2intheinterestsofGroup
cohesiveness, that was not an explanation set out in their letters or affidavits and thereforecannotbeaccepted.Having
signed the Notice, by later signing R2 they were representing to the Speaker and their co-signatories thattheirsignatures
on the Notice had been obtained through misrepresentation and deceitand this is confirmedbytheircondemnationofthe
"malicious move to remove the President".Hadtheyrevokedtheirsignaturesashavingbeenaffixedbymistake,or
misunderstanding, or some other reason, it was incumbent on them to have stated this in R2, or at leastintheirpleadings
in these proceedings. Since the 1st Petitioner had signed without seeing the petition, and "begantounderstandwhatthis
was all about" only on 2.9.91, it is almostanirresistibleconclusionthathissignaturehadbeenobtainedthrough
misrepresentation, if not deceit.
In a speech to the Parliamentary Group on 18.9.91, the President stated that no disciplinary action wouldbetakenagainst
any Members who said that they had signed the Notice and later retracted their signatureshe also said that a resolutionto
this effect would be adopted by the Working Committee. There is no evidence thatsucharesolutionwaspassed,butthe
minutes of the Working Committee meeting of 6.12.91 refer to the "understanding" that no disciplinary actionwillbetaken
against such members.
On 8.10.91 the Speaker announced in Parliament that having inquired into the matter he was of the view thattheNoticedid
not have the required number of valid signatures, and accordingly could not be proceeded withthiswastheverydecision
which the Group had sought by R2. Notice was immediately given of a "No confidence" motion against theSpeaker.Byletters
dated 9.10.91 to the Chief Government Whip ("the Whip") both Petitioners requested a free vote on that motion, stating:
"In the exercise of my rights as a Member of Parliament under Article 38(2) of the Constitution,IsignedtheImpeachment
resolution and delivered it to the Speaker.
By making a wrong statement as to the validity of that Resolution which had been signed and givenbyme,theSpeakerhad
violated my privileges as a Government Member of Parliament. For that reason I intend to vote in favour of theNo-confidence
motion against him."
The Group met on 9.10.91the two Petitioners were absent without any excuse or reasonit was unanimouslydecidedtovote
against the "No-confidence" motion, and to reject the Petitioners' request for a free vote. Thisdecisionwasconveyedto
the 2nd Petitioner by letter dated 9.10.91 (handed to him in Parliament at about 10.00 a.m. on 10.10.91) directing him tobe
present and to vote against the "No confidence" motion. That decision, however, could not be conveyed to the 1stPetitioner,
as he was not available at his Colombo and Divulapitiya residences where the Secretary to the Whip endeavouredtotelephone
him on the night of 9.10.91, and as he was not present in Parliament on 10.10.91. The1stPetitionerdidnotattemptto
ascertain what decision had been reached on his request for a free vote. On 10.10.91 both Petitioners were absentatvoting
time and hence did not vote against that motion, which was defeated.
At the Group meeting on 9.10.91 a direction had been given that two other Members - Dr. P M. B. Cyril and Mr. R. Samaraweera-
be also informed to vote against the No-confidence motion. Dr. CyrilhadjoinedtheeightexpelledMembersintheir
campaign, but voted against the motion and gave a written undertaking not to supportorparticipateincriticismofthe
Party or its activities. Mr. Samaraweera did not vote against the motion, but later wrote to the 2nd Respondent statingthat
he had not participated, and would not participate, inanyactivitycontrarytothePartypolicies.Thequestionof
disciplinary action against all four Members was considered by the Working Committee on 4.11.91.. It was decided, in viewof
the letters sent by Dr. Cyril and Mr. Samaraweera, not to take disciplinary action against themand toawaitthejudgment
of this Court in the cases tiled by the expelled eight Membersthat was delivered on 3.12.91.
The Disciplinary Committee of the Party's Working Committee met and submitted a reporton3.12.91 theyrecommendedthat
disciplinary action be taken against the Petitioners, on account of several matters (the same matters whichwerelaterset
out in the letter of expulsion (P1) dated 9.12.91). The Working Committee met at 7.00p.m.onthesamedayand,having
considered the Report of the Disciplinary Committee and 'the letters dated 9.10.91 written by the Petitioners,decidedthat
"the General Secretary should write to these two members, requestingthemtobepresentatameetingoftheWorking
Committee to be held on 6.12.91 at 8.00 p.m. for the purpose of discussingtheirconductasmembersoftheParty" no
particulars were given.
Letters dated 3.12.91 were sent by the 2nd Respondent (the General Secretary) by express post (certificates ofpostinghave
been produced) the same night to both Petitionersto both Colombo addresses as well astheirconstituencyaddresses.The
Petitioners state that the letters to their Colombo addresses never reached themand that the letters to theirconstituency
addresses were received on 9.12.91. It is unnecessary for us to decide whether and when those letters were received,because
the parties have agreed, for the purpose of determining these proceedings only, that these letters had not beenreceivedon
or before 6.12.91. By those letters, each Petitioner was informed only that the Working Committee had consideredhisletter
dated 9.10.91, and requested him to be present at a meeting fixed for 6.12.91 at 8.00 p.m. "forthepurposeofdiscussing
and considering your conduct as a member of the Party as appears from your letter" dated 9.10.91, andthatifhedidnot
attend, the Working Committee would proceed to consider the matter in hisabsence.Noreferencewasmadetotheother
matters set out in the report of the Disciplinary Committee.
On 6.12.91 the Working Committee duly metassuming that the Petitioners had received notice, and noting thattheyhadnot
sent any communication regarding their absence, the Committee proceeded to discusstheirconduct.Severaldocumentswere
tabled: the report of the Disciplinary Committee, letters dated 30.8.91 (R1),19.9.91(P4),and9.10.91,theresolution
dated 2.9.91 (R2), and "newspaper reports [unspecified] of public meetings held bytheformerexpelledeightmembersat
which [the Petitioners] were present". Six members of the Committee spokesome referred to factual matters(e.g.thatthe
2nd petitioner had denied his signature to R1 and R2that the decision to refuse a free vote had been conveyedtothe2nd
Petitioner, but not to the first), and others expressed opinions (e.g. that thePetitioners'conductwasdeceitful).The
committee then resolved to expel them from the Party, with immediate effect, for the following reasons:
"1. That they were, on their own admissions, signatories to the Notice of Resolution under Article 38(2) of theConstitution
to impeach H.E. the President, the Leader of the Party. Notwithstanding that they were signatories to the letterdated30th
August, 1991, addressed to the Speaker by Members of the Government Parliamentary Group and also totheResolutionofthe
Government Parliamentary Group of 2nd September, 1991, they have persisted in maintaining their support ofthesaidNotice
2.Their conduct in continuing to support the said Notice of Resolution subsequenttotheirsigningtheaforesaid
letter dated 30th August, 1991, and the said Resolution of 2nd September, 1991, and their letters dated9thOctober,1991,
written to the Chief Government Whip, establish deceitfulactionontheirparttowardsthePartyandtheGovernment
3.That whilst being members of the Party they have associated themselves with the public campaign carried onbythe
8 former members of the Party who were expelled from the Party on 6th September,1991,atwhichthePartypoliciesand
Leadership and more particularly the Executive Presidential system have been criticized.
4. That their aforesaid acts set-out at (1) and (3) above werecommittedwithoutpriorconsultationwithordiscussion
within the Party Organisation.
5.That despite their requests for a free vote on the Motion of No confidence against theSpeakerbeingrefusedby
the Government Parliamentary Group, they were not present in Parliament on 10th October, 1991, to votewiththeGovernment
benches against the Motion, and have up to date not tendered any reason or excuse for such breach.
6. They have by their aforesaid acts violated Section 3(a), (b), (d)Section 9(d), (e), (f), (g)andSection17(1),(2),
(3), (6) of the Party Constitution."
The President and Mr. M. D. A. Gunatillake, M.P., did not participate in the discussion or in the voting.
By letters dated 9.12.91 (P1) the 2nd Respondent informed the Petitioners of their expulsion setting outtheaforesaidsix
reasons. On 9.12.91, before receiving P1, the 1st Petitioner wrote to the 2nd Respondent explaining thathewasabsentas
the Notice was received after 6.12.91. On 12.12.91, after receiving P1, the 2nd Petitioner wrote in similar terms to the2nd
Respondent, protesting that the steps taken against him were illegal. Neither Petitionerrequestedanotheropportunityof
appearing before the Working Committeeand even if they were under no obligation to make sucharequest,itisrelevant
that the "Divaina" of 10.12.91 reported that on 9.12.91 the 1st Petitioner said that -
(a) he had decided not to institute proceedings to challenge the expulsion because he knew what the decision would be
(b) he would join the newly formed Democratic United National Front, and work to safeguard democracy
(c) the decision not to challenge the expulsion was reached after discussions the previous day
(d) the other Member of Parliament, Muthu Banda, who had been expelled like him would act in the same manner
(e) as he had the legal right to attend Parliament until 7th January 1992, he would participate in Parliamentaryproceedings
(f) they had personally no objection to the U.N.P. or President Premadasabut they would in the futuretooparticipatein
the public campaign against acts, both undemocratic and harmful to the Party, done in order to entrench thedictatorshipof
a single individualand
(g) he intended to address the public at rallies of the Lalith-Gamini group.
The Petitioners did not deny or explain this report either then or in the course of the proceedings.Thereisnoevidence
that the Respondents communicated the expulsion resolutions to the Secretary-General of Parliament, ortookanyactionto
make legal consequences flow from those resolutions. The2ndRespondentwrotesimilarlettersdated21.12.91toboth
Petitioners, to their Colombo and constituency addresses. He tried to maintainthateachPetitioner-hadadequatenotice,
because the letters dated 3.12.91 had been, sent by express post, and "furthermore, the fact that you wereaskedtoattend
the said meeting was known and spokenoftoyourknowledgeinthe.ParliamentaryLobby,andalsoappearedinthe
newspapers". This position the Respondents do not now seek to supportand what is relevant is the following:
"Nevertheless, without prejudice to the above and although you do not seek such an opportunity orgiveanyexplanationin
regard to your actions in your letter under reply, I write to inform you thatifyousodesireyoucouldforwardyour
written observations stating your position in regard to the items Nos. (1) to (6) set out inmyregisteredlettertoyou
dated 9.12.1991 (a further copy of which is annexed.) These written observations should reach me atthePartyHeadquarters
"Sirikotha" by 4 p.m. on Friday, 27th December, 1991.
I shall thereafter inform you by letter (which will be hand delivered at your Colombo addressonorbefore31stDecember
1991, with copies sent under registered post) whether the Working Committee, having considered your observations, decidesto
rescind or vary or confirm its decision of 6th December, 1991.
These letters were received on 23.12.91they had four days time, until the 27th, to reply, but they were abletoreplyon
"Answering the allegations contained in your letter of the 9th instant I wish to state as follows:
1. At the outset I would like to place on record my objections to the holding of a disciplinary inquiryagainstmebythe
Working Committee of the Party, as it is a body which is personally selected and appointed by the Leader of the Partyalone,
and under the Party constitution has no right, authority or power to conduct any disciplinary proceedingsagainstamember
of the Party and/or to expel such member. Under the constitution of the Party, it is the National ExecutiveCommitteewhich
is vested with such right, authority or power. Further,. neither the NationalConventionofthePartynortheNational
Executive Committee has the power to delegate its functions relating to the disciplinary control of members of the Party.
2. No disciplinary action can be taken against me by the Party on theallegedgroundthatIhadsignedthemotionof
resolution submitted to the Speaker under Article 38 (2) of the Constitution, to impeach His Excellency the President ofSri
Lanka, who is also the Leader of the Party, by reason of the fact that the decision takenand/ortheactdonebymein
signing the motion of resolution was pursuant to a right, power or authority conferred on me as a Member of Parliamentunder
the aforesaid Article of the
Constitution, which cannot be reviewed or controlled by the Party and/or any of its committees.
No rule, convention or principle of the Party can override the Constitutional right, duty or responsibility conferredonme
by the Constitution of the country which I, as a Member of Parliament, have sworn to defend and uphold.
3. I deny having indulged in any deceitful action against the Party and the Government Parliamentary Group.
4. I deny the allegation contained in paragraph 3 of your letter.
5. In view of the foregoing, the allegation contained in paragraph 4 does not arise.
6. My absence from Parliament on 10th October 1991, is not a violation of Party discipline.
7. I deny that I have violated any provisions of the Party constitution.
8. I urge that a proper and lawful inquiry be-held to inquire into the allegations containedinyourletter,atwhichI
propose to adduce further evidence to refute the allegations contained therein.
The Working Committee met on 30.12.91they endorsed the actiontakenbythe2ndRespondentinsendinglettersdated
21.12.91and considered the Petitioners' replies dated 26.12.91. The legalobjectioninparagraph1wasrejected.The
explanation in paragraph 2 was rejected, particularly becausethemattersallegedintheNoticehadnotbeenraised
internally. In regard to paragraph 3, the view was taken that the Petitioner haddeceivedtheGroupandthePartyinto
believing that they were withdrawing their signatures to the Notice and were joining in requesting the Speaker to rejectit,
but that their letters of 9.10.91 showed that they were standing by their signatures and disputingtheSpeaker'srejection
thereof, although they themselves had called upon the Speaker to reject the resolutionthat those letters showedthatthey
were affirming the allegations in the Notice, although by their conduct they had conveyed the impression thattheywereno
longer supporting those allegations. Dealing with paragraph 4, the committee observed that the Petitioners had merelydenied
the charge although the uncontradicted newspaper reportsshowedthecontrary.Paragraph5wasconsideredunacceptable
because the Petitioners had not raised those mattersinternally.TheCommitteeheldthatthePetitioners'unexplained
absence from Parliament at voting time on 10.10.91 was a breach of Party discipline. The Committee decided that onanumber
of matters the Petitioners' position was in conflict with the recent judgment of this Court thattheCommitteedidhave
disciplinary authorityand that thePetitionershadnotadducedanyfactsorreasonstojustifyfurtherinquiry.
Accordingly the Committee decided not to reconsider or alter the decisions reached on 6.12.91this was communicated to the
Petitioners the same day. On 3.1.92 these petitions were filed.
2. PETITIONERS' APPLICATION TO LEAD ORAL EVIDENCE
Mr. Athulathmudali, P.C., sought to lead the oral evidence of the Petitioners on two matters, relevant totheirabsenceat
voting time on 10.10.91: the fact and the contents of a telephone call by the 1st Petitioner to theSecretarytotheWhip
said to have been made on 10.10.91, and the precise contents of an admitted conversation between the 2nd PetitionerandMr.
M. L. M. Aboosally M.P., Minister of State for Plantations on 10.10.91. Mr. Choksy P.C., did notobject.WerequestedMr.
Athulathmudali to state precisely what facts he proposed to establish by oral evidence.
In regard to the first matter, the 1st Petitioner had stated in his petition that he had been a heart patient (andthiswas
admitted by the Respondents)that he had chest pains on 10.10.91that he Went to the Cardiology Unit, where,accordingto
a treatment sheet, certain drugs had been prescribedthat later he consulted a (private) General Practitioner, from whomhe
obtained the following medical certificate dated 10.10.91:
"Mr. Ariyaratne Jayatilaka was seen by me on 10.10.91 with a history of pain in the chest and vertigo ? [sic]Anginalpain.
He has been advised to rest for a fey days."
Immediately thereafter he averred that "... he communicated his state of health to the Secretary to ... the ChiefGovernment
Whip", giving the impression that the "communication" was made after the visitstotheCardiologyUnitandtheprivate
practitioner. However Mr. Athulathmudali PC., stated that he sought to lead the 1st Petitioner's evidence toprovethathe
telephoned the Secretary in the morning on 10.10.91 before taking treatment. When askedwhetherthe1stPetitionerwould
testify that he informed the Secretary that he would be absent at voting time, Mr. Athulathmudali stated thathewouldnot
so testify, but that this was the necessary implication of his intimation as to his stateofhealth.Thepleadingscould
have, but unfortunately did not, make it clear whether it was in the morning or in theafternoonthatthe1stPetitioner
went to the Cardiology Unitwhether any doctor examined him, and if so, recommended restwhether theprivatepractitioner
was consulted before or after the vote, and did anything more than recording the history as`relatedbythepatient.One
thing is certainthe 1st Petitioner did not inform the Secretary in the morning that he would be unabletobepresentat
voting timeand it is now common ground that there was no communication (by him or on his behalf) later that dayafterhis
visits to the cardiology Unit and the private practitioner. The Secretary deposedtothepracticeofrecordingmessages
regarding the inability of Members to attend Parliamentthat the 1st Petitioner had not intimated that he wouldbeabsent
and denied that he had made a communication as set out in his affidavit. It is clearthatthe1stPetitioner'sposition,
even if oral evidence was permitted, would have been that he did not at any time on 10. 10.91 inform theSecretarythathe
would be absent at voting time. He could perhaps have testified that when he said he was not well he meant that he wouldnot
be able to be present but did not say so in his affidavit. Since the 1st Petitioner had stated in his letter of 9.10.91that
he intended to support the No-confidence motion, we asked Mr. Athulathmudali whether the 1stpetitioner,ifnotforill-
health, would have voted for that motionMr. Athulathmudali stated that if he had been able to attend Parliament,:the1st
petitioner would have voted with the Group, against that motion. There is no explanation for the 1st Petitioner's failureto
set out these facts in his affidavit or counter-affidaviteven inregardtothesimpleclaimthathetelephonedthe
Secretary, he deposed that he "communicated", leaving the Respondents in doubt as to whether such communicationwaswritten
or oral, direct or indirect. It thus became clear that the real purposeoforalevidencewas,atbest,tosupplythe
deficiencies in the pleadings and affidavits, and not to give the Court the opportunity of resolving a conflictbetweenthe
affidavits of the opposing sides, by seeing and hearing the witnesses and deciding on their credibility.
In regard to the second matter, the 2nd Petitioner had stated in his petition that:
" ... he was advised by Mr. M. L. M. Aboosally ... that he had just spoken to the President ... and thatifthePetitioner
was not in a position to vote with the Government against the said motion, that [he] should not be present when thevoteon
the said motion was taken."
Mr. Aboosally's deposed that "... he met the Petitioner in Parliament on 10.10.91 and in the course ofconversationadvised
him to vote with the Government against the motion." Mr. Athulathmudali stated that the 2nd Petitioner'soralevidencewas
necessary to prove that Mr. Aboosally had informed him that the President had indicated, ineffect,thatabstentionwould
not expose him to disciplinary action. It is intrinsically improbable that after a unanimous decision bythePresidentand
the Group at 5.00 p.m. on 9.10.91, conveyed through the Whip at 10.00 a.m. on 10.10.91, the President wouldsoonthereafter
convey an inconsistent direction through another intermediary.
Leaving aside that issue of credibility, it is impossible to understand why the 2nd Petitioner could not havedirectlymade
that allegation in his affidavit, or even in his counter-affidavit, by stating "... and that the President had said thatif
the Petitioner was not in a position to vote with the Government against the said motion, that he should not be present..."
Mr. Athulathmudali's submission was that this was the necessary implication of the affidavit, but an affidavit(particularly
on a point of crucial importance) must set out the facts clearly-and precisely, leaving the other party and the Courtinno
doubt as to the facts alleged. It was submitted that, if not for what Mr. Aboosally told him, the 2nd Petitionerwouldhave
voted with the Government Group against the motioninexplicably, this was not set out in his affidavit. Heretootheneed
for oral evidence was to cure defective affidavits, and not to enabletheCourttodeterminewhichoftwoconflicting
versions was more probable and credible.
The application to lead oral evidence was therefore refused.
3. ADMISSIBILITY OF PETITIONERS' COUNTER-AFFIDAVITS
In the course of the submissions it was observed that the counter-affidavits dated 29.1.92,ofbothPetitionershadbeen
sworn before one of the junior counsel appearing for them. Although itwassuggestedthathebeenretainedonlyafter
29.1.92, in fact his appearance had been marked on 13.1.92 and 27.1.92. In Pakir Mohidin v. Mohamadu Casim (2), itwasheld
by Bonser, C.J., that an affidavit sworn before the deponent's own Proctor ought not to be receivedinevidence(seealso
Cadar Saibu v. Sayadu Beebi (3). This rule of practice has been consistently observed, and would apply to anAttorney-at-Law
today. It is a salutary rule intended to ensure that an affidavit is duly readexplained in the deponent's ownlanguageif
it is in a language which he does not understandunderstoodand then signed. The failure to observe this ruleisallthe
more serious in this case: the 1st Petitioner is a person who had signed an important document (the Notice)withoutreading
itand the 2nd Petitioner is one who had repudiated his signature on R2, and whose knowledge of English,accordingtoMr.
Athulathmudali, was not quite adequate. Mr. Athulathmudali moved for permission to file fresh affidavits in identicalterms,
but sworn before an independent Justice of the Peace. However Mr. Choksy stated that the Respondents did notobjecttothe
affidavits being received. It is in those circumstances that we refrained from rejecting these affidavits,withoutinany
way intending to weaken the authority of Pakir Mohidin v. Mohamadu Cassim.
4. JURISDICTION OF WORKING COMMITTEE
In Dissanayake v. Kaleel, we held that under the Party ConstitutiontheNationalExecutiveCommitteehadthepowerto
delegate its disciplinary powers to the Working Committee. Mr. Athulathmudali submitted however that thedisciplinarypower
sought to be exercised in these cases could not be delegated, becauseitwasonlytheExecutiveCommitteewhichcould
exercise that power, under Rule 9(d):
"The selected candidate shall be called upon ... to give a pledge that...hewillconformtothePrinciples,Policy,
Programme and Code and of the Party [etc.] ... If he fails to do so the Executive Committee shall take allnecessaryaction
for the punishment of such offender."
He contends that the Party Constitution does not authorise the delegation of this power. Disciplinarypowersareconferred
in general terms by Rule 8(3) (a), and Rule 9(d) does not add to those powersrather, it imposes adutyontheExecutive
Committee to take action. I hold that Rule 8(3) (m) authorises the delegation of all the powers of theExecutiveCommittee,
whether expressly enumerated (in Rule 8 or 9, or elsewhere) or not.
Mr. Athulathmudali next submitted that the Executive Committee had not in factdelegateditsdisciplinarypowerstothe
Working Committee. The Petitioner originally averred that:
" ... the resolution of the National Executive Committee purporting to vest such powers in the Working Committeeon19.4.91
was not duly passed as it had been merely proposed but not adopted'
and produced the relevant minute:
" ... The following resolution was proposed by Mr. P. Almon Peiris and seconded by Mr. Piyasoma Upali.
It is hereby proposed that the Working Committee of the Party be vested with full powers to carryouttheresponsibilities
and functions of the National executive Committee of the Party.'
The 2nd Respondent thereupon produced the minutes of the Executive Committee meetings held on 19.4.91 and 7.9.91thelatter
refers in identical terms to another resolution being proposed and seconded. In his affidavit he deposed to the fact thathe
was present at both meetings, and that both resolutions were unanimously adopted after they were proposedandseconded.He
also produced minutes of several meetings held in 1988 and 1989, referring to similar resolutions in the same way.
The 1st Petitioner in reply stated that he was present atbothmeetings,where"theresolutionempoweringtheWorking
Committee was not put to the House for adoption and was not therefore adopted". The 2nd Petitionerdidnotclaimtohave
been present at either meeting. It is important that the 1st Petitioner did not make any mention in hisfirstaffidavitof
what transpired on 7.9.91, but chose to do so only after the 2nd Respondent referred to that meeting. Itseemsverylikely
that he did not really pay much attention to what transpired on 7.9.91. It is thereforemoreprobablethannotthatthe
resolution was adopted by the Executive Committee at its meeting on 7.9.91. Further, inthelightofsimilarminutesat
several previous meetings it is difficult to resist the conclusionthattheExecutiveCommitteedid,insomeformor
another, and at some time or the other, express its approval of at least some of those resolutions.TheWorkingCommittee,
in my view, did have the delegated disciplinary powers to deal with the Petitioners.
5. NATURAL JUSTICE: AUDI ALTERAM PARTEM
In Dissanayake v. Kaleel I set out my reasons for holding that the audi afteram partem rule applied. Mr. Choksy did notseek
to argue that in the exercise of its disciplinary powers the Working Committee was notboundbytheaudialterampartem
rule. Mr. Choksy also conceded that the proceedings of the Working Committee,commencingwiththeDisciplinaryCommittee
meeting of 3.12.91 and ending with the letters of expulsion(P1)dated9.12.91,consideredindependentlyofsubsequent
letters and events, were in breach of that rule. Toassesstheremedialeffectofthesubsequentproceedings,itis
necessary to ascertain the nature and extent of the departure from Natural Justice: the more seriousthebreach,themore
difficult to cure.
Firstly, the notice given was inadequate, as the Working Committee shouldhaverealizedhowuncertainitwasthatthe
letters dated 3.12.91 would be delivered in timecertainly, not intimetoenablethePetitionerstoprepareforan
inquiryhand. delivery, telegrams and telephone messages could have been resorted to, if meetingon6.12.91wascrucial
had the Petitioners attended on 6.12.91, they would have been entitled, as of right, to apostponementonaccountofthe
inadequacy of the time and the lack of particulars. Secondly, and evenmoreserious,thenotices,didnotspecifythe
allegations against the Petitionersthey were no more than an invitation for a discussion, not even hintingatanydanger
of disciplinary action, let alone expulsioneven if the Petitioners had received the notices in time, but neverthelesskept
away, the inadequacy of the notices was such as to preclude the Working Committee from coming tothefindingssetoutin
their minutes of 6.12.91 and the lettersofexpulsion(P1),forsuchallegationshadnotbeencommunicatedtothe
Petitioners even in a general way. The default in that respect is grave, because these allegations had already beensetout
in detail in the report of the Disciplinary Committeea possible explanation might be that the Working Committeewishedto
have a conciliatory discussion first, but this does not appear in theirminutesorinthe2ndRespondent'saffidavits
further, although the Working Committee had wished to discuss the Petitioners' conduct asmembersoftheParty,the2nd
Respondent's letter dated 3.12.91 confined the subject matter of the proposed discussion to their conductasappearedfrom
their letters dated 9.10.91. Finally, the Working Committee had several documents relevant to the Petitioners'conduct,but
did not disclose these to the Petitioners and invite their observations.
Had the Petitioners instituted proceedings immediately upon receipt of. the lettersofexpulsion,theywouldnecessarily
have succeeded. The question then is whether what transpired between 9th and 30th Decemberamountedtoawaiverofthis
right or cured these illegalities and irregularities. While it would normally be undesirable to treatnewspaperreportsas
evidence, depending on whether or not they had been contradicted, here the protagonists had selected the press asonearena
for battle. One such report related to the 1st Petitioner's statement to the presson9.12.91thatbothPetitionershad
decided not to challenge the expulsion, to join the new political Party, and tocontinuetheirpubliccampaign.The2nd
Respondent's delay in sending letters dated 21.12.91 had beenexplainedascausedbyPartyactivities,theS.A.A.R.C.
Summit, and the S.A.F. Games. Those letters did not withdraw or suspend the expulsion. Indeed the 2ndRespondentcouldnot
have done so. They were in effect, an invitation to the Petitioners to read the findingsinthelettersofexpulsionas
charges or allegations, and to reply them. Perhaps the Petitioners might have been better advised to have refused todoso,
unless and until the expulsions were pro forma withdrawn or suspendedor to reply without prejudice to theirobjectionsto
the validity of the expulsions. But they elected to reply to this putative charge sheet, bytheirlettersdated26.12.91.
Mr. Athulathmudali sought to explain away the many shortcomings in those replies on the basis that thePetitionerswereby
then preparing to file petitions in this Courtbut that means that they were getting ready with the facts anddocumentsto
state their case in this Court, and hence could have submitted adequate replies with less difficultythere wasnolackof
time, because they replied in three days, although they had one more day. He soughttodrawasharpdistinctionbetween
"explanations" and "observations", and strenuously submitted that the Petitioners were not askedforan"explanation"but
only for their "observations", accordingly, he said, they need not have done more than toadmitordenytheallegations.
That is not how the Petitioners understood it, for they proceeded to answer the allegations", not only by mere admissionsor
denials, but by stating their position on a number of matters.
In the context I can see no material difference between the two phrasesan 'explanation" is a statement makingplainone's
position, or accounting for one's conduct. Here what was required was "observations" ofsuchanaturethatconsideration
thereof would enable the Working Committee to rescind, vary or confirm its previous decisionameredenialwastherefore
obviously insufficient. Further, written observations "stating your position" were called for, and that would beequivalent,
for all practical purposes, to an explanation. But I do not wish to rest my decision on such narrow ground.NaturalJustice
is a living, growing and flexible concept. To judge compliance by reference to the use of a specific form or formula, orthe
observance of a particular procedure or process, would inevitably confine and constrict a dynamic and expanding principleof
substantial fairness within the stifling and static technicalities of form andprocedure.Thusthequestionwhetherthe
Petitioners have been denied a fair hearing, or a fair opportunity to state their case,canneverbemadetodependon
whether they were asked merely for "observations", and not for "explanations".Inthecontextofallthathappenedin
December 1991, the four days allowed to them (of which they needed only three) were sufficient to state their case andthe
manner in which they did so, had a direct bearing on the further question whether Natural Justice requiredanoralhearing
and additional evidence.
The allegations against the Petitioners
Although both counsel approached the matter almost as if these were charges in criminal proceedings governed by theCodeof
Criminal Procedure, in my view it is the substance and not the formthatisimportant.Theessenceoftheallegations
against the Petitioners was:
1. (a) Signing the Notice of resolution without prior internal discussion within the Party
(b) Continuing to Support thatNoticedespiterevocationandretractionoftheirSignatureswithoutpriorinternal
2.Deceitful conduct towards the Party in regard to such revocation and retraction, as evidenced bytheirsubsequent
conduct (namely, their continued support of the Notice and their letters of 9.10.91)
3.Absence from Parliament on 10.10.91 and failure to vote with the group, and failure to tender any reason orexcuse
4.Associating with 8 expelled members in a public campaign againstthePartypolicies,andleadership,andthe
Executive Presidential System, without prior internal discussion.
These allegations were said to constitute breaches of various provisions of the Party constitution.
In their reply to the first allegation, they admitted signing the Notice, but asserted that itwasintheexerciseofa
Constitutional right. In Dissanayake v. Kaleel, I held that a Member of Parliament has a constitutional right to sign sucha
Notice, in the exerciseofanindependentdiscretion,andthatthisisaquasi-judicialpower.Imust,however,
unequivocally, reject anysuggestionthatthisrightextendstothesigningofadocument,contentsunseen.Mr.
Athulathmudali attempted to justify the 1st Petitioner's conduct as a commonpractice,affirminghisstatementthat"in
Parliament we have put our signature [in this way? to many other such documents", and submitted that the1stPetitionerby
signing took responsibility for whatever was in the Notice. The question is not his responsibility oraccountabilityafter.
signingbut rather whether he genuinely exercised his discretion before affixing his signature.Hadthedocumentrelated
only to the 1st Petitioner's personal affairs, it might have been a mere question of responsibility orliability butthis
was a public matter, relating to Constitutional powers and duties, and it was a grave misuse ofaConstitutionalrightto
have signed, without knowledge of its contents, an indictment of the most serious kind known to our law. The Petitionersdid
not deny that there was no prior internal discussion, but claimed only that this question did not arisebecausetheNotice
was signed in the exercise of a Constitutional right. In this Court, it was urged that sincethePresidenthadsaidthat
disciplinary action would not be taken against Members who retracted their signatures, the Petitionerscouldnotbedealt
with on this charge. Obviously, such a "pardon" was not unconditional: if the retraction was notgenuine,orwasrevoked,
the offence would be revived and would attract disciplinary action. Mr. Choksy, however, did not pressthisaspectofthe
first charge. In regard to the allegation of continuing to support the Notice despite theretractionoftheirsignatures,
the Petitioners did not deny the fact of continued supporttheir sole defencewasthattheysignedtheNoticeinthe
exercise of their Constitutional right. Mr. Athulathmudali's submission was thatsincesigningwasprotected,everything
done subsequently, arising from or referabletosuchsigning,wasequallyimmunefromchallenge:anargumentquite
inapplicable to the 1st Petitioner, whose act of signing was not an exercise, but an abuse of hisConstitutionalright.In
any event, the question of continued support after retraction of the signatures stands on an entirelydifferentfootingto
the original act of signing. Once the Petitioners represented to the Speaker and totheGroupthattheyretractedtheir
signatures, alleging misrepresentation, deceit and malice, they could no longer be heard to say that theNoticewasvalid,
or that they had signed it in the exercise of a Constitutional right (for they did not claim that the retractionwasvoid).
Here too the Petitioners did not deny the absence of prior internal discussion before continuing to support the Notice.
Second, the Petitioners were charged with deceitful conduct, based on two matters: continued support, subsequenttoR1and
R2, and their letters of 9.10.91. As mentioned above, continued support was not denied, and theirletterof9.10.91could
not have been denied. Undoubtedly, by signing R1 and R2 they gave the impression that they had never supported, or nolonger
supported, the Notice. Was that genuine or was that an attempt to deceive the Group?Theirsubsequentconduct,andtheir
letters of 9.10.91 which make no reference to R1 and R2, reasonably give rise to the inference thattheirretractionswere
not genuine. In the case of the 2nd Petitioner any other inference is not reasonably possible, in view ofhisfalsedenial
that he signed R2: But even ignoring that for the moment, let me examine the theoreticalpossibilitythattheretractions
were genuine, and that they subsequently, and in good faith, changed their minds again. This is notareasonableinference
for several reasons. The Petitioners did not say so in their letters of 9.10.91, asserting instead that the Noticewasduly
signed by themit was a matter on which the burden of proof lay upon thembut even in theirrepliesdated21.12.91they
did not take up this positionit has not even been adverted to in their pleadings in this Court. Insteadofstatingtheir
position on these factual matters which were within their exclusive knowledge, they merely denied that they hadindulgedin
any, deceitful action. Further, in R2 they had repudiated their signatures as having been procured bymisrepresentationand
deceit, actuated by malice, so that any change of mind must have extended not only to the substance of theNoticebutalso
to those vitiating factors. To overcome this hurdle, Mr. Athulathmudali sought to construe this allegationasmeaningthat
the letters of 9.10.91 constituted deceitful conduct, and urged that internal letters, written in order to raisemattersof
conscience, could not be the subject of disciplinary action. This is not tenable. The allegation is quite plain.Itisnot
that their conduct and/or their letters constitute deceitful action, but rather that "theirconduct...andtheirletter
dated 9.10.91 ... establish deceitful action towards the Party and the Group" i.e.thatsubsequentconductandletters
prove that previous behaviour (the purported retraction) was deceitful.HefurthersubmittedthatR1andR2contained
criticisms of the Speaker, and that the Petitioners too desired to give effect totheirowncriticismsoftheSpeaker's
conduct in regard to the Notice. That submission ignores the fact that the Petitioners expressly specified their solereason
for losing confidence in the Speaker: namely for having wrongly treated theirsignaturesontheNoticeasinvalid.The
Speaker accepted their own representation and request to him, and it would be absurd toloseconfidenceinhimforthat
reason. If they had said that the Speaker erred initially, in entertaining the Notice without adequate considerationofthe
validity of the signatures, or had been guilty of undue delay in acting uponR1andR2,Icouldhaveappreciatedthis
submission. But they did not criticise the Speaker on that ground.
Coming to the third allegation, the Petitioners admitted their absence fromParliamentatvotingtimeon10.10.91,and
merely denied that this constituted a breach of Party discipline. They did not deny that they had failed to tenderareason
or excuse for their absence. The 1st Petitioner claims that he had communicated his state of health to the Secretarytothe
Whipon 10.10.91 itself he had obtained a medical certificate advising restMr. Athulathmudali was not able to suggestany
reason why a Member of Parliament should have obtained such a medical certificate except to excuse his absenceon10.10.91
and the 1st Petitioner is himself an Attorney-at Law. If the truth is that the 1stPetitionerwouldhavevotedwiththe
Group, but for his ill-health, why wasthissimplepositionnotstatedinhisreply?The2ndPetitionerclaimsa
Presidential dispensation from the Group directive conveyed through Mr. Aboosally: why did he not simply say"Mr.Aboosally
will tell you that the President had said that I may keep away if I cannot vote with the Group, and if not for thisIwould
have voted with the Group"? Mr. Athulathmudali submitted that if an oral hearing had beengiven,allthesematterswould
have been clarified. But that is not the issue. The Petitioners were asked to state their positionthey did so,andfailed
to deny simple allegations of fact, and omitted to state factual matters peculiarly within their knowledgethe scope ofthe
inquiry was thereby narrowed, by them. Had they said, "We deny the allegations against us, and will state our positionafter
full particulars of the matters alleged are furnished", the position might have been different. Here theychoseto"answer
the allegations", and by admitting (at least by implication) the material factstheygreatlynarrowedthescopeofthe
It is convenient to summarize at this stage the position in regardtothesethreeallegations.SigningtheNoticeand
absence at voting timeon10.10.91wereexpresslyadmitted.SigningR1andR2,continuingtosupporttheNotice
subsequently, the letters of 9.10.91, and the failure (upto 6.12.91) to tender any reason or excuse for absenceon10.10.91
were admitted by necessary implicationin this Court they were not denied. The explanation thatthePetitionershadbona
fide changed their minds, between 2.9.91 and 9.10.91, was not tendered to the Working Committee, or set out in thepleadings
in these proceedings. The reasons for absence on 10.10.91 were stated for the first time in their petitionstothisCourt
and even then it was not suggested that they would otherwise have voted with theGroup.Thusinrespectofthesethree
allegations the primary facts were not in question. Whether thosefactsestablisheddeceitfulconductwasamatterof
inference. Whether they established misconduct warranting expulsion was a matter of law. That misconduct wouldhavebrought
The Party into-disrepute (Rule 3(d)), was contrary to the directive oftheGroup(Rule17(2)),andwasgenerallyin
violation of fundamental obligations of loyalty and honesty owed to the Party and to fellow members.
The fourth allegation was based on newspaper reports, but this was not stated in P1. No particulars were furnished as tothe
dates, the places, and the criticisms complained of. This allegation was denied by thePetitionersandhencetheWorking
Committee could not have come to a finding without an inquiry into the facts. Although Mr. Athulathmudali madenocomplaint
in that respect, it is also unsatisfactory that at no stage did the Disciplinary Committee or the Working Committeeidentify
the particular newspaper reports relied on. In the course of the proceedings in this Court ahandfulofnewspaperreports
were produced by the Respondents, relating to the period upto 6.12.91, whichwerenotdeniedbythePetitioners.These
reports show some degree of association with the 8 expelled Members, and some criticism of the PresidentandtheExecutive
Presidential System. Further, the "Divaina" report of 10.12.91 (which was not one of the reportsactedonbytheWorking
Committee) established the Petitioners' attitude: they would address public rallies of the expelled Members, andjointheir
party, and oppose the Party leadership. However, all these do not leadtoanirresistibleconclusionofguilt.Further
inquiry, disclosure of particulars, and an oral hearing was therefore necessary. However, these proceedings arenotbyway
of review alone, and consideration of the merits is also required. Here again the Petitioners' legalsubmissionsarefound
to be undermined by their pleadings: for in their counter-affidavits each Petitioner replied thus:
"I deny that any of the alleged acts if committed by me is unlawful. I was not theonlyonewhopursuedthatcourseof
conduct, e.g. Dr. P M. B. Cyril and Mr. Ravindra Samaraweera ... Dr. P. M. B. Cyril who appeared on the platformoftheso
called rebels and who in his speeches had attacked the President ..."
An affidavit must state the facts- within the personal knowledge of the deponent. If the Petitioners hadnotcommittedthe
acts alleged, they could have. directly denied the allegation in a straightforward mannerif they wishedtoaddthatDr.
Cyril had not been dealt with for conduct similar to the acts alleged, they could have said this as well. But whatdidthey
mean by the conditional denial ("if committed by me") followed by the mitigatory admission ("I was not the only one")?I
find this averment to be ambiguous as well as evasive. In the context of the Petitioners'courseofconduct,theseveral
unsatisfactory features of their affidavits, and the "Divaina" report of 10.12.91, I am constrained to hold that there isno
denial of this allegation. Assuming in their favour that such criticisms were, or might have been, within the scope oftheir
fundamental right to freedom of speech, (for the reasons stated in Dissanayake v. Kaleel), yet the gravamenofthatcharge
is the undoubted lack of prior internal discussion.
In this state of the facts, it is necessary to consider whether the audi alteram partem rule had been complied with. Thisis
not a case where the Petitioners had asserted that the expulsion decision of 6.12.91 was void, and refused to participatein
the subsequent proceedingsor participated, without prejudice to that positionanditisunnecessarytoconsiderthat
situation. Here the Petitioners chose to participate in the subsequent proceedingstheywereaffordedanopportunityto
state their case, and did sothe facts and circumstances were not at all complex, andtheycouldwithoutanydifficulty
have stated their case in three or four daysand when they did so, the facts ceased to be in disputeexceptinregardto
the fourth allegationthereupon an oral hearing became unnecessary in regard to thefirstthreeallegations.Theywere,
however, entitled to particulars and an oral hearing in regard to the fourth allegation, but their pleadingsinthisCourt
indicate that on the fourth allegation too the facts were not really in dispute. In any event, theotherthreeallegations
were sufficiently grave to render expulsion a proper and appropriate penalty, and the defect in procedure inregardtothe
fourth was not fatal.
While Natural Justice entitles a person to a fair and accurate statement of the allegations against him (RidgevBaldwin(4)
Stevenson v. United Road Transport Union(5), Labouchere v. Wharncliffe (6)), the mere fact that he had not been givenformal
notice of all the matters in which his conduct was to be called in question did not necessarily entitle him tocontendthat
the inquiry was in breach of the audi alteram partem rule. Thus in Davis v. Carew-Pole (7) notice was given to thePlaintiff
in respect of an allegation that he had trained a horse contrary to the National Hunt Rules. At theinquiry,withoutprior
notice, his activities in regard to the training of two other horses were also considered, and an adverse order was made.No
fact was in dispute in regard to the Plaintiff concerning the other two horses. ItwasheldthatthePlaintiffwasnot
prejudiced by the lack of notice and therefore failed in his contention that there had been abreachoftheaudialteram
partem rule. In Russell v. Duke of Norfolk (8), a trainer whose license was withdrawn for doping contended thattheinquiry
was contrary to the principles of Natural Justice because only part of the analyst's certificate was readtohim,omitting
that portion which identified the particular drug. This omission was held insufficient toconstituteabreachofNatural
The Effect of a Subsequent Hearing
I now turn to the question whether a subsequent (fair) hearing after a decision made in breach oftheaudialterampartem
rule, can validate that decision. This is not a case of a deliberate breach of NaturalJustice,astheWorkingCommittee
attempted to give notice, and it is unnecessary to consider that situation. Even in other cases, "since the initialdecision
... will almost inevitably have a prejudicial effect, the law ought to be slow to admit such dubiousprocedure"saysProf.
Wade who referstoseveralprecedents(AdministrativeLaw,5thEd.,pp490-491) thispassagewascitedbyMr.
Athulathmudali, who however did not discuss the several authorities therein cited, despite my invitationtodoso.Itis
also discussed by Prof. S. A. de Smith (Halsbury's Laws, Vol. l, 4th Ed.paragraph77)DecisionsfromCanada,Trinidad,
England, Singapore and Australia, in a variety of situations, have been citedbythem,andtheseImustnowconsider,
without the benefit of counsel's submissions, in order to determine the validity ofexpulsionsresolveduponafter"such
In Ridge v. Baldwin,(4) the relevant facts were that:
"The watch committee were under a statutory obligation ... to comply with the regulations made under the (Police]Act.They
dismissed the appellant [on 7th March] after finding that he had been negligent in the discharge of his duty.Yettheyhad
preferred no charge against the appellant and gave him no notice. They gave him no opportunity to defend himself,ortobe
heard. Though their good faith is in no way impugned, they completely disregardedtheregulationsanddidnotbeginto
comply with them." (at p. 113)
"On March 18 [the appellant's solicitor] was given not only a full butacourteoushearingbythewatchcommitteebut
received no indication of the nature of the charges which his client had to answer, notwithstanding hisrepeatedstatements
that he did not know what they were. It is plain, therefore, that if there were a failure on March 7 to give justicetothe
appellant this was not cured on March 18 when the watch committee confirmed their previous decision. At this hearingitwas
made plain by [the solicitor] that his client was not seeking reinstatement but only his pension rights of which he hadbeen
deprived by his dismissal. This position is maintained by the appellant through his counsel before YourLordships."(atp.
Lord Reid held:
"Next comes the question whether the respondents failure to follow the rules of natural justice on March 7thwasmadegood
by the meeting on March 18. I do not doubt that if an officer or body realises that it has acted hastily and reconsidersthe
whole matter afresh, after affording to the person affected aproperopportunitytopresenthiscase,thenitslater
decision will be valid. An example is De Verteuil's case (10). But here the appellant's solicitor was not fullyinformedof
the charges against the appellant and the watch committee did not annul the decision which theyhadalreadypublishedand
proceed to make a new decision. In my judgment, what was done on that day wasa'veryinadequatesubstituteforafull
rehearing. Even so, three members of the committee changed their minds, and it is impossible to say what the decision ofthe
committee would have been if there had been a full hearing after disclosure to the appellant of the whole caseagainsthim,
I agree with those of your Lordships who hold that this meeting on March 18th cannot affect the result of thisappeal."(at
A case from Canada, Posluns v. Toronto Stock. Exchange(9), can be contrasted. The Board of Governors oftheStockExchange
held an inquiry on 28th February into certain transactions entered into between the Daily Company (amemberfirmofwhich
the Appellant was a director) and another firm (Lido).
"The appellant was present at the hearing of February 20th at which a statement was read recitingthefactsknowntothe
Board concerning the transactions in question and he was given an opportunity to explain hisassociationwithLido.After
considering the matter amongst themselves, the members of the Board called in the representatives oftheDalyCompanyand
announced that they were unanimously of the opinion that the company wasguiltyofsixofthesevenactsofomission
preferred against it, including the first. After representations had been madeonthecompany'sbehalfwithrespectto
penalty, the matter was again considered and it was decided to impose the maximum fine of $5,000 on R. A. Daly, Jr.
There then occurred what the trial Judge referred to as an unfortunate error because theBoard,insteadofacceptingthe
fact that it had completed the inquiry with respect to the Daly Company upon which it had properly embarked, went on todeal
independently and additionally with the appellant... After relatively little discussion, itwasunanimouslyresolvedthat
all prior consents given to the appellant as a director, officer and shareholder of the Daly Company be terminatedforthwith
and it was the general understanding that his association with the Daly firm was to be severed in all respects.
Although the President of the Daly Company was informed of the resolution withdrawing the appellant'sapprovals,noaction
was at that time taken by the Board to put the terms of the resolution into effect and on the followingdayrepresentations
were made to the Board that there should be a rehearing with respect to Posluns personal position. The Board acceded tothis
request and a hearing was set for March 2nd on which date the same members of the Board were present whohadconductedthe
February 28th meeting and a statement was read reviewing what had transpired at the meeting in so far as itrelatedtothe
appellant. The appellant was represented at this meeting by counsel who wasaskedwhetherhewishedtocalladditional
evidence and replied that there was no dispute about the evidence but only as to the interpretation tobeplaceduponit.
The appellant's counsel then made full representations to the Board and concluded with a plea in mitigation urgingthatthe
publication of the resolution withdrawing the approvals would do irreparable damage to the appellant andhisfamily.There
being no dispute as to the facts, the members of the Board adjourned to consider the matter in lightoftheinterpretation
placed on them by the appellant's counsel and in light of the submissions which he had madeconcerningthepenaltytobe
imposedin the result they concluded that the appellant's conduct was such as towarrantthewithdrawaloftheBoard's
approvals of his association with the Daly Company, but they agreed that the resolution directing that withdrawalpassedat
the meeting of February 28th would not be acted upon or published if the appellant resigned byMarch10th.TheAppellant,
however, decided not to tender his resignation and a letter was accordingly forwarded from theBoardtotheDalyCompany
giving formal notice of the resolution." (at p. 168-169)
The difference between the two cases was summed up thus:
From the above recital of the facts it will be apparent that the circumstances in Ridge v. Baldwin were quite differentfrom
those in the present case. In Ridge v Baldwin the appellant was never told of the case which hehadtomeet,whereasMr.
Posluns knew what was complained of in his conduct some days before the first hearing. In Ridge v. Baldwin the appellantwas
given no opportunity to be heard at either meeting, whereas Posluns gave evidence andhadafullopportunitytoexplain
himself at the first hearing and declined, through his counsel, to add anything at the second hearing to theevidencewhich
had already been taken. In Ridge v. Baldwin the plea made by the chief constable's solicitor at the second hearingthathis
client should be permitted to resign was of no avail, whereas after listening to the submissionsofPoslun'ssolicitorat
the March 2nd hearing, the Board of Governors gave him ten days in which to resign and withheld official publicationofthe
resolution passed against him until that period expired and Posluns had declined to resign.
In my opinion, the contention that the proceedings at the meeting on March 2nd were in thenatureofanappealfromthe
decision of February 28th rather than a rehearing, leaves out of accountthefactthattheBoardgavetheappellant's
solicitor full opportunity to call any evidence he pleased at the second hearing and that it was he andnottheBoardwho
made the election to abide by the evidence taken in February. He then reviewed all the circumstances afresh andadvancedat
every turn the construction of the facts which was most favourable to his client.Intheresult,althoughtheBoardof
Governors did not change their ruling, they offered to withdraw it altogether if the appellant would resign. In my viewalso
it is inconsistent to speak of the March 2nd hearing as an appeal when the disputed resolutionwasnotformallypublished
until March 10th." (at p. 173)
De Verteuil v. Knaggs (10), falls in between. A statute provided that:
"If at any time it appears to the Governor, on sufficient ground shown to his satisfaction, that all or any of theimmigrant
indentured on any plantation should be removed therefrom, it shall be lawful for himtotransfertheindenturesofsuch
immigrants for the remainder of their respective terms of service to any other employer who may be willingtoaccepttheir
services and pay the remaining indenture fee".
Upon a complaint by the Protector of Immigrants in regard to the treatment and conditions of immigrantsontheappellant's
estate, on 16.12.1915 the Governor, ex parte, and without affording an opportunity to the appellant tomakeanyansweror
explanation, made an order for the removal of the indentured immigrants from the appellant's estate, and for the transferof
their indentures to some other employerit does not appear that a particular employer was specified.Thefirstintimation
which the appellant received was in a letter dated 20.12.1915 from the Protector of Immigrants setting out fourallegations.
Thereupon the appellant sought and obtained a personal interview with the Governor on 23.12.1915, at which he wasgranteda
fair opportunity of placing his answer to the allegations. Further clarification was furnished byletterdated27.12.1915.
On 7.1.1916 the Colonial Secretary informed the appellant that the Governor did not feel justified incancelingtheorder.
The appellant made two further attempts to persuade the Governor, who finally ruled that the immigrants must beremovedand
transferred to another estate the manager of which was willing to accept them. The Privy Council held that the Governor"did
not proceed without giving fair notice to the appellant of the charges madeagainsthim,orwithoutgivinghimafair
opportunity to make an answer to such charges." This case is similar to Ridge v. Baldwin in that the initial order, takenin
isolation, was in breach of Natural Justiceit differs however from that case, and is similar to Posluns case,inthatno
steps were taken to publish the order or to make it enforceable,ortomakelegalconsequencesflow,andinthatin
subsequent proceedings a full and fair opportunity of meeting the case against him was given.
Those were cases of re-hearing by the same authority. The principle thatafailureofNaturalJusticeattheoriginal
hearing may sometimes be cured by a "full re-hearing" by another body was recognisedbythePrivycouncilinPillaiv.
Singapore City Council (11). Having held that the rules of Natural Justice did not applytothefirsttribunal,yetthe
Privy Council observed that even if they did apply, the subsequent proceedings cured the defect. Although theywerebyway
of "appeal", those proceedings were in the nature of a re-hearing and evidence was calleddenova.Thiswasfollowedin
Stringer v Minister of Housing (12). In Calvin v Carr (13), the Privy Council dealing with an appeal fromNewSouthWales,
recognised that there was no absolute rule, either way, as to whether defects in Natural Justice at an originalhearingcan
be cured through proceedings by wayofappealorre-hearing(atpp.447-448) everythingdependsonwhetherafter
"examination of the hearing process, original and appeal as a whole", the Court is satisfied that"therehasbeenafair
result, reached by fair methods"whether "the appellant's case has received, overall, fullandfairconsideration".(pp.
448, 449, 452).
Applying these principles, (a) the initial breach of Natural Justicewasnotdeliberate (b)actionwasnottakento
enforce, or to make legal consequences flow from, the order of expulsion, and the fact that the Petitionersparticipatedin
the subsequent proceedings gave the Working Committee a locus poenitentiae(c) the allegations were fairlyandadequately,
though not fully and precisely, communicatedand (d) a fair opportunity was given to the Petitioners tostatetheircase,
and an oral hearing became unnecessary as the facts were undisputedinconsequenceoftheirreplies.Iholdthatthe
Petitioners case had received - overall - full and fair consideration, and that there had beenafairresult,reachedby
In coming to this conclusion, I have not overlooked Mr. Athulathmudali's submissions that (a) the elaborate"Guidelinesfor
Disciplinary inquiries" adopted by the Party were not followed, and (b) the Petitioners had no opportunity of being heardin
mitigation. while I agree that those guidelines embody exemplary procedures to be followed by Disciplinary Panels,theyare
not binding on the Working Committee. Even if the WorkingCommitteeoughttohavecompliedwiththespiritofthose
Guidelines, the ultimate question is whether, in the unusual circumstances of this case,therehasbeenoverall,afair
hearing. In regard to mitigation, the misconduct was so serious (and I have dealt with this aspect in Dissanayake v.Kaleel)
as to make mitigation impossible. Apart from that, in response to a question from us, Mr. Athulathmudali submittedthatthe
matters to be urged in mitigation were (i) the explanations for absence on 10. 10.91, (ii) that Dr. Cyril and Mr.Samarawera
were excused, and (iii) that the Petitioners voted with the Government on the Budget. Theseexplanationsshouldhavebeen
submitted, in defence and in mitigation, to the Working Committee. The conduct of Dr. CyrilandMr.Samaraweerawerefar
less serious, and could not be characterized as deceitful. Voting for the Budget was more a matter of the politicalsurvival
of the Petitioners, rather than of support for the Group. In any event, on 9.12.91 the Petitioners hadvirtuallyrepudiated
the Party, and had cast their lot with the new D.U.N.F
I determine that the expulsion of the Petitioners was valid. The proceedings oftheWorkingCommitteeupto6.12.91were
irregular and dubious, and could not have been sustained but for the subsequentproceedings,inregardtowhichcomplex
questions of law arose. I therefore refrain from making any order for costs in favour of the Respondents.
These applications (Special) Nos. 1 and 2/92 were of consent heard together as theyinvolvedthesameissuesandrested
substantially on the same facts. The petitioners areMembersofParliamentelectedattheGeneralElectionsheldin
February, 1989 as Members of the United National Party (The 4th respondent) which is a recognised political party withinthe
meaning of the Parliamentary Elections Act No. 1 of 1981. The1st,2ndand3rdrespondentsaretheChairman,General
Secretary and General Treasurer of the U.N.P. respectivelythey are also members of theNationalExecutiveCommitteeand
the Working Committee of the U.N.P. The 5th respondent is the Secretary-General of Parliamentagainstwhomnoreliefhas
been claimedhe has been joined only for the purpose of giving him notice of these proceedings.
The petitioners have invoked the jurisdiction of this Court under the Proviso to Article99(13)(a)oftheConstitution.
Each of them seeks a determination that his expulsion from the membership oftheUNP,communicatedbytheletterdated
09.12.91 under the hand of the 2nd respondent, was invalid. The decision for the expulsionofthesepetitionershasbeen
made by the Working Committee of the UNP by its resolution adopted at a meeting held on 06.12.91. A copy oftheMinutesof
that meeting has been produced marked R10. The grounds for the expulsion of both petitioners are identical andaresetout
in the said resolution and in the letters sent to them on 09.12.91 copies of which have been produced marked P1ineachof
these applications. Under Article 99(13) (a) of the Constitution the seats of these petitioners will become vacant byreason
of their expulsion from the membership of the UNP and they will be deprived of their status as Members ofParliamentunless
they obtain a determination from this Court that the impugned expulsion was invalid.
The petitioner in application No. 1 has been a member of the UNP from 1970 and was elected as a MP in 1977 andin1989.He
was a member of the NEC of the UNP from 1977, and functioned as District Minister for Gampaha duringtheFirstParliament.
After his election in 1989 he was appointed a State Minister and later as a Project Minister which office hehelduntilhe
resigned therefrom on 18.09.91. The petitioner in application No. 2 has been a member of the UNP from1960andaMPfrom
EVENTS LEADING TO THE EXPULSION OF THE PETITIONERS FROM THE UNP
PROCEEDINGS FOR THE REMOVAL OF THE PRESIDENT
The petitioners have been expelled for conduct alleged to be violative of the provisions of theUNPConstitution(P2)and
arising by reason of certain activities by them in the aftermath of a campaign by some MPs to take proceedings underArticle
38(1) (e) of the Constitution read with Article 38(2) for the removal of His Excellency Ranasinghe Premadasa from theOffice
of President of the Republic of Sri Lanka. Under Rule 7(1) of the UNP Constitution The President, being a member of theUNP,
is also the Leader of the Party. A copy of the notice of resolution given to the Speaker under Article 38(2)(a)(sometimes
hereinafter referred to as the impeachment motion) has been produced marked P3B. It is undated and bears nosignatures.The
petitioners state that the said notice of resolution had been signed by notlessthanone-halfofthewholenumberof
Members of Parliamentand that on 28.08.91 the Speaker informed the President by writing that he hadentertainedthesaid
resolution in terms of Article 38(2) (b) and further drew the attention of the President to Proviso (C) to Article 70(1).
WITHDRAWAL OF PROCEEDINGS AGAINST THE PRESIDENT
The petitioners further state that subsequently, they with other members of the Government Parliamentary Group byawriting
dated 30.08.91 addressed to the Speaker withdrew and revokedtheirsignaturesandconsenttotheaforesaidnoticeof
resolutionthey also signed a resolution adopted by the GovernmentParliamentaryGroupon02.09.91which,interalia,