Legal Services and Laws of Sri Lanka


SLR-1994 Vol.3-P138

SLR - 1994 Vol.3, Page No - 138

P. R. DE SILVA
v.
KALEEL AND OTHERS
COURT OF APPEAL.
PALAKIDNAR, J. (PRESIDENT, COURT OF APPEAL),
WIJEYARATNE, J. AND
WEERASEKERA, J.
C.A. APPLICATION NO. 679/92
NOVEMBER 6, 11, 12 & 13, 1992.

Provincial Councils - Expulsion of Provincial Council Member from U.N.P. membership - Provincial Councils Elections Act, No.
2 of 1988, s. 63(1) - Provincial Councils Act, No. 42 of 1987 s. 3 - Article 154 of the Constitution.

Held:
Section 63(1) of the Provincial Councils Elections Act, No. 2 of 1988, whichprovidesforanexpulsionofaProvincial
Council Member is not invalid, becausethisprovisionhasnotbeenincludedintheConstitution(whichestablishes
Provincial Councils) nor in the Provincial Councils Act, No. 42 of 1987, (which provides by section 3fordisqualifications
and by section 5 for vacation of seats).
By Article 154(a) of the Constitution, it is laiddownthatParliamentshall,bylaw,providefortheelectionand
qualifications for membership of Provincial Councillors and implicit in this provision is the powerofpassinglegislation
for disqualifications too, and hence section 63(1) has been enacted under these powers.
In any event Article 80(3) of the Constitution precludes theCourtfrompronouncinguponthevalidityofanyActof
Parliament.

Section 63(1) of the Provincial Councils Act bears almost thesamewordingasArticle99(13)(a)oftheConstitution
applicable in respect of expulsion of Members of Parliament which can be challenged in the Supreme Court.
In both instances the expulsion can be challenged on grounds that "such expulsion was invalid".
Reasons and justification for the expulsion will have to be gone into to determine this question.
When the rules of natural justice have been followed prior to expulsion, it is sufficientfortherespondentstosatisfy
court that the expulsion was valid and proof beyond reasonable doubt is unnecessary.
Where -
1. there was a fair inquiry in which charges were explained and evidence of witnesses led in the presence of thepetitioner,
who was given an opportunity to cross-examine them and also to rebut charges, explain his position and to lead evidence
2. the rules of natural justice have been substantially complied withand
3. there was evidence to prove the charges that the petitioner had acted contrary to party discipline and the rules
the expulsion cannot be said to be invalid.

Cases referred to:
1. Gamini Dissanayake et al. v. M. C. M. Kaleel et. al. S.C. (Special Nos.4)11/91 S.C. Minutes of 3.12.91.
2. Foutaine v. Chesterton (1968) The Times Aug, 20,1968112 Sol. Jo. 690.
3. John v Rees (1969) 2 WLR 1294, 1333.
4. The Board of Education v. Rice (1911) A.C. 179, 182.
5. Ridge v. Baldwin (1964) A.C. 40,132.
6. The University of Ceylon v Fernando 61 NLR 505, 512.
7. Russell v. Duke of Norfolk (1949) 1 A.E.R. 109, 118.
8. General Medical Council v. Spackman i.
9. Chulasubadra de Silva v. The University of Colombo and Others (1986) 2 Sri. LR. 288.
10. R. v. Deputy Industrial Injuries Commissioner, ex p. Moore (1965) 1 All E.R. 81,84.
11. Ariyaratne Jayatillaka and S. A. Muthu Banda v. M. C. M. Kaleet et al. S.C. Application Nos. 1 and 2/92 - S.C. Minutes
of 28.2.92.
APPLICATION challenging expulsion of Provincial Council Member from U.N.P. membership.
Lalith Athulathmudali, P.C. with Ranjan Goonaratne, Dr. Ranjith Fernando,Mahendra Amerasekera, Ranjani Morawaka, T.M.S.
Nanayakkara, Nalin Dissanayake, Kalinga Indatissa, M. B. Handakumbura, P. GaminiPeris,and JanapritiFernandoforthe
petitioner.
K. N. Choksy, P.C. with L. C. Seneviratne, P.C., S. C. Crosette-Tambiah, DayaPelpola, S.J. Mohideen, D. H. N. Jayamahaand
Ronald Perera for 1st to 4th respondents.

December 11, 1992.

WIJEYARATNE, J.
The petitioner filed this application originally on 15.9.92 and later filed an amended application on 25.9.92foranorder
declaring his expulsion from a recognized political party, to wit, the United National Party (hereinafter referred to asthe
U.N.P.) to be invalid and of no legal effect and that he continues to remain a member of the U.N.P.
The 1st, 2nd and 3rd respondents are the Chairman, the General Secretary, andtheGeneralTreasurerrespectivelyofthe
U.N.P. They are also members of the National Executive Committee and the Working Committee of the U.N.P., and thepetitioner
has sought permission to proceed against them as representing these bodies too.

The 4th respondent is the U.N.P. itself while the 5th respondent is the Secretary of the Southern Provincial Council andthe
6th respondent is the Commissioner of Elections.
The petitioner avers that in 1988 he was elected a Member of the Southern Provincial Council as a memberoftheU.N.P.He
received a letter dated 15.4.92 (P2) from the Hon. Minister Festus Perera, Chairman oftheDisciplinaryCommitteeofthe
U.N.P., calling upon him to show cause in writing for violating the party constitution to which he repliedbyletterdated
24.4.92 (P3) denying the allegation. Thereafter he received a letter dated 13.5.92 (P4) from the 2nd respondent statingthat
the Members of the Disciplinary Committee were not satisfied with his reply and stating that a disciplinary inquiry wouldbe
held on 19.5.92 at the Party Headquarters.

The petitioner attended this inquiry, which was postponed to 21.5.92, on which date tooitwaspostponedto25.5.92.On
25.5.92 the inquiry commenced and Kalinga Obeywansa presented some newspaper cuttings and some letterssuggestingthatthe
petitioner . had connections with the Democratic United National Front (hereinafter referred to as D.U.N.F). The inquirywas
then postponed for 2.6.92 and he states that he was not furnished with copies of proceedings norofcertainnewwitnesses
who were to be called.

At the inquiry on 2.6.92 Kalinga Obeywansa, without any prior notice to him, led the evidence of DharmasenaMendis,Praveen
de Silva, M. M. Wilson, W. Nalaka de Silva and two others, and the inquiry was postponed for 30.6.92, on whichdateitwas
postponed to 6.7.92 and thereafter to 24.7.92.
On 24.7.92 the petitioner had led the evidence of two persons as his witnesses, namely, M. S. Amarasiri,ChiefMinisterof
the Southern Provincial Council, and Ranjith Kumarage, MR, both of whom stated that no complaints had beenreceivedagainst
the petitioner.
The petitioner avers that he received a letter dated 20.8.92 (P15) signed by the 2ndrespondentstatingthattheWorking
Committee had considered the report of the Disciplinary Committee and that the Working Committee hadfoundhimguiltyand
had resolved to expel him.
The petitioner avers that the purported expulsion is invalid and void and of no avail in law, inasmuch as, inter alia,
(a) the said expulsion is contrary to the principles of natural justice
(b) no precise charges were framed and the petitioner was denied the opportunity of adequately preparing his defence
(c) the petitioner was not given any reason for the expulsion
(d) the expulsion is ultra vires the partyconstitutionand/orthepartyguidelinesfortheconductofdisciplinary
inquiries. A copy of these guidelines has been annexed to the petition marked P16
(e) in any event the expulsion is ultra vires and/or invalid as it has been based on the evidence of unreliable andunworthy
witnesses some of whom were personal enemies, particularly Kalinga Obeywansa who acted as prosecutor and witness
(f) the petitioner had not been warned previously that his conduct was in violation of the U.N.P. Constitution, that he was
not informed that he had been found guilty by the Disciplinary Committee prior to his expulsionbytheWorkingCommittee,
and that he was not provided with an opportunity of appealing against that decision
(g) in any event the expulsion is disproportionate to the charges alleged against the petitioner.
The petitioner further avers that he has been informed thatthe2ndrespondenthadwrittenandinformedtheSouthern
Provincial Council of his expulsion and that the 5th respondent had communicated the said expulsion to the 6th respondent.
To this application objections dated 30.10.92 have been filed by " the 1st to 4th respondents.
They deny that a disciplinary inquiry was held on 19.5.92. They aver that the members of the disciplinary committee werethe
Hon. Festus Perera, M.P., who was Chairman, Hon. E. P. Paul Perera, M.P., and Hon. John Amaratunga, M.P., whopostponedthe
inquiry for 21.5.92 at the Parliamentary complex.
From the context of P2 (which is annexed to the petition) the petitioner was aware that thedisciplinarycommitteewasto
inquire into the charge that he had functioned as a member of the D.U.N.F. while being a member of the U.N.P.andaU.N.P.
Provincial Councillor in breach of party discipline. The nature of the charges had been explained to thepetitionerbythe
inquiry panel at the commencement of the inquiry.
They aver that the inquiry commenced on 21.5.92 at the Parliamentary complex, at the outset of whichtheChairmaninformed
the petitioner of the charges (which were the same that were conveyed WhimbyP2),andthepetitionerhadansweredby
denying the charges.

The notes of inquiry held on 21.5.92, 2.6.92, 30.6.92, 6.7.92 and 24.7.92 marked R1 to R5 (with the translationsmarkedR1a
to R5a respectively), together with the documents produced at the inquiry marked P1 toP10,nowmarkedX1toX10(with
translations marked X1A to X10A), were tendered along with the objections. They admittedconveyingthisexpulsiontothe
Southern Provincial Council and that the 5th respondent had communicated the same to the 6th respondent.
The 1st to 4th respondents in their objections further aver that -
(a) the disciplinary committee of the party is a sub-committee of the Working Committee, which is empowered toexercisethe
disciplinary power of the party.
(b) the panel of inquiry consisting of the aforesaid Festus Perera, Paul Perera and JohnAmaratungabeingmembersofthe
Working Committee, was appointed to hold an inquiry and report in respect of the petitioner.
(c) the petitioner participated at the inquiry and was made aware of the charges. At no time didhecomplainthathewas
unaware of the charges nor did he request copies of the proceedings.
(d) the petitioner was afforded the opportunity of defending himself in leading evidence and cross-examining witnesses.
(e) the petitioner was made aware in advance of the witnesses and at no stage did he complain that he had noopportunityof
adquately preparing his defenceon the contrary the petitioner participated at the inquiry without protest.
The 1st to 4th respondents also aver that the panel which conducted the inquiry made its report thereon tothedisciplinary
committee which having considered the evidence recorded in R1 to R5 and the report R6 made its recommendation (marked R7)to
the Working Committee. The Working Committee having considered the charges and the evidence, the positiontakenupbythe
petitioner, the report of the panel R6, decided that the petitioner had violated clauses 3 (1) (a), (b) and(d)and9(d)
and (g) of the party constitution.
The Working Committee also considered the punishment and decided to expel the petitioner. The minutes of the meetingofthe
Working Committee has been annexed marked R8.
They aver that the expulsion of the petitioner was lawful and justifiable and wasmadeintherightfulexerciseofthe
powers of the party under the constitution after due and proper inquiry and prayed that the petition be dismissed.
Thereafter the petitioner filed a counter-affidavit on 2.11.92.

In this counter-affidavit he states that the documents produced by the 1st to 4threspondentsarenottrueandaccurate
recordsin particular he states that no proceedings wereconductedon21.5.92asevidencedbydocumentR3filedin
Application bearing No. C.A. 473/92 of this court, which shows that the three inquiry officershadcarriedonaninquiry
against J. E. P. B. S. Samaratunga, former Chairman of the Central Provincial Council. The 1st to4threspondentsinthis
case are the same respondents in that case also. This document (R3 in that application) is annexed marked P17 to thepresent
application.
The petitioner in C.A. 473/92 J. E. P. B. S. Samaratunga had sworn an affidavit stating that on 21.5.92, though bothheand
the petitioner were summoned, only his inquiry was conducted on that day. ThisaffidavitwasannexedmarkedP18tothe
present application.
In this counter-affidavit the petitoner also states that though R1 alleges that the chargesheethadbeenexplainedonly
broadly and not specifically, in any event on 21.5.92 no charge sheet was explained to him eitherbroadlyorspecifically,
or otherwise.
In this counter-affidavit the petitioner has also stated that various items havebeenattributedtohimincorrectlyand
falsely in R1 to R5, some of which are as follows:-
(i) Proceedings of 24.7.92 wherein the petitioner is recorded as having stated "I am satisfied with the manner in whichthis
inquiry was held". This was denied.
(ii) Proceedings of 21.5.92 where it is recorded that "the Chairman informed Mr. P R. de Silvahewasfreetobringany
witnesseshe was also informed that the following personswouldbegivingevidence:(1)BertyKulatunga,{2)N.N.
Weeramuni, (3) Wilbert Soysa,
(4) P. Praveen de Silva, (5) M. Wilson Soysa (6) Dharmasena Mendis."
The petitioner states that this is false and untrue as no proceedingswereconductedon21.5.92andon2.6.92Kalinga
Obeywansa brought these six witnesses to the inquiry without notice.
Then the affidavit goes on to contradict and criticise certain items of evidence tendered against him.
The affidavit goes on to say that the answer of M. S. Amarasiri as to whether the petitioner is the P R.Silvareferredto
in the Daily News list (XB) has not been recorded in the proceedings.
Though RlA states that Kalinga Obeywansa's evidence was concluded on 21.5.92, neverthelesson30.6.92hewasallowedto
produce a letter addressed to Mrs. Lora de Zoysa, which is marked as P10 (x10).
The affidavit states that some of the documents he had produced during the proceedings had not been recorded. One such wasa
dock statement made by the late Buddharakkita Thero, one of the accused in the assassination case of the late PrimeMinister
S. W. R. D. Bandaranaike, where he has said that it was Kalinga Obeywansa who had fabricated the case against him thishad
not been recorded.
The affidavit states that it was contrary to the principles of natural justice to allow Kalinga Obeywansa, who was himselfa
witness, to bring in names of new witnesses unannounced. As a result he was deprived of the opportunity of getting readyand
obtaining legal advice.

It is unfair and unjustifiable for the disciplinary committee to make the report R6 as it is based on inaccuracies andfalse
allegations. Various such details are set out.
The affidavit goes on to say that the alleged disciplinary committee acted in direct violation of the "U.N.P. guidelinesfor
the conduct of disciplinary inquiries" (P16) and he was deprived of a fair hearing and of a fairchanceofexplainingand
contradicting the evidence against him.

Finally the affidavit goes on to state that the three member committee had been incorrectly and illegally empoweredtohold
this inquiry and it should have been held by the Working Committee or the disciplinary committee, and that thethreemember
committee misdirected themselves on the burden and quantum of proof.
Admittedly this expulsion of the petitioner and his applicationtothiscourtwasmadeundersection63(1)ofthe
Provincial Councils Elections Act, No. 2 of 1988, which reads as follows:
"Where a member of a Provincial Council ceases, by resignation, expulsion or otherwise,tobeamemberofarecognized
political party or independent group on whose nomination paper his name appeared at the time ofhisbecomingsuchmember,
his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member:
Provided that in the case of the expulsion of a member of a Provincial Council his seat shall not become vacant ifpriorto
the expiration of the said period of one month he applies to the Court of Appeal by petition inwritingandtheCourtof
Appeal upon such application determines that such expulsion was invalid. Suchpetitionshallbeinquiredintobythree
Judges of the Court of Appeal who shall make their determination within two months of the filing of such petition. Wherethe
Court of Appeal determines that the expulsion was valid the vacancy shall occur from the date of such determination."

At the commencement of this argument Mr. Lalith Athulathmudali, P.C. for the petitioner took up the position thatProvincial
Councils were setup, inter alia, under the provisions of Articles 154(A) to 154 (D) oftheConstitution.Disqualifications
in respect of members of Provincial Councils are set out in section 3 of the Provincial Councils Act, No.42of1987,and
the vacation of their seats is provided in section 5 of the said Act. Section 9 oftheProvincialCouncilsElectionsAct
provide for disqualifications of members by referring back tosection3oftheProvincialCouncilsAct.Thereisno
additional disqualification created by this section 9 of the Provincial Councils Elections Act.
Part V of the Provincial Councils Elections Act is headed "Filling of Vacancies". It is onlysection63(1)(whichfalls
within Part V of the said Act) that provides for vacation by expulsion. This mode of vacation by expulsion is onlyfoundin
the Provincial Councils Elections Act which is only procedural andnotsubstantive.UnlikeinthecaseofMembersof
Parliament where vacation by expulsion is set out in Article 99 (I) (13) (a) of the Constitution, this mode of vacation ofa
seat by expulsion in the case of ProvincialCouncillorsisnotsetoutintheProvincialCouncilsActnorinthe
Constitution which creates Provincial Councils. Therefore Mr. Athulathmudali argued, to givethisprovisionasubstantive
meaning would be violative of the Constitution.

He further argued that sections 3 and 5 of the Provincial Councils Act are exhaustive ofthecircumstancesunderwhicha
Provincial Council member's seat could be vacated and section 9 of the Provincial CouncilsElectionsActrelatesbackto
these sections. Therefore he argued that there is no parliamentary scheme orintenttogiveanysubstantivequalityto
section 63 (1) of the Provincial Councils Elections Act.
He relied on Articles 3 and 4 of the Constitution relating to the inalienable sovereignty of thePeopleandthefranchise
and contended that the vacation of a Provincial Council member's seat upon his expulsion from his party, beinganimportant
matter, should have been contained in the Constitution itself. if it weretobecontainedinanordinaryenactmentof
Parliament, he argued, it should at leasthavebeenenactedintheProvincialCouncilsActitselfwheretheother
disqualifications are provided and not in the Provincial Councils-Elections Act, which is merely procedural. Hepointedout
that Articles 89 and 91(1) of the Constitution deal with the qualifications and disqualifications of a Member ofParliament.
Article 101 of the Constitution provides for Parliament by law tomakeprovisionfortheregistrationofelectorsand
variousothermattersconnectedwithelections,butinitsprovisostatesthatnosuchlawshalladdtothe
disqualifications specified in Articles 89 and 91.
He submitted that the petitioner's right as a member of the Provincial Council is vested for fiveyearsbyArticle154(E)
and that right cannot be taken away lightly. It is a rule of interpretation that vested rights cannot be lightlytakenaway
and he relied on the following passage from Bindra on "Interpretation of Statutes" (7th Edn. 1984, p.218)whichreadsas
follows:

"There is a presumption against the taking away of a vestedrightbyanyfreshlegislation,andaconstructionwhich
involves the taking away of vested rights ought not to be adopted if the wordsoftheenactmentareopentoanyother
construction."
He also pointed out that under section 65 of the Provincial Councils Act thefillingofvacanciesofProvincialCouncil
members is at the sole discretion of the Secretary of the recognized political party who can nominate anyone and he neednot
be a person who has contested at the election, but in the case,' of Members of Parliament the procedure isdifferent,where
the Commissioner of Elections appoints the person who has secured the next highest number of preferences at the election.He
argued that sections 3 and 5 of the Provincial Councils Act are exhaustive of theconditionsunderwhichamemberofa
Provincial Council can vacate office and this is reiterated in section 9 of the Provincial Councils Elections Act.Therefore
he argued that there is no substantive quality given to section 63 (1) of the Provincial Councils Elections Act.
I have carefully considered all these legal submissions. However section 63 of theProvincialCouncilsElectionsActhas
been enacted in pursuance of the power expressly granted to Parliament by Article 154 (Q) (a) whichempowersParliamentto
provide by law for the election of members of Provincial Councils and the qualification for membership of such councillors.

Implicit in the provision of passing legislation providing for the qualification of membership of Provincial Councils isthe
provision of passing legislation for disqualifications too.
Bindra in his "Interpretation of Statutes" (7th Edn. 1984 at p.719) quotes from Craies Statutes Law (5th Edn. at p.238)as
follows:

"One of the first principles of law with regard to the effectofanenablingActisthatiftheLegislatureenables
something to be done, it gives power at the same time, by necessary implication to do every thing which is indispensablefor
the purpose of carrying out the purpose in view."
Bindra in the said book goes on to say at page 719:
"Moreover, if a statute is passed for the purpose of enabling something to be done,butomitstomentionintermssome
details of great importance (if not actually essential) to the properandeffectualperformanceoftheworkwhichthe
statute has in contemplation, it is beyond doubt thatCourtsareatlibertytoinferthatthestatutebynecessary
implication empowers that the details be carried out".
Hence Parliament has power to enact the Provincial Councils Elections Act and particular section 63 (1).
It should be noted that the proviso to Article 101 oftheConstitutionwhichprovidesthatnolawshalladdtothe
disqualification specified in Articles 89 and 91 applies only in respect of Members ofParliamentandnotinrespectof
Provincial Councillors.
In any event, Article 80 (3) of the Constitution precludes this courtfrompronouncinguponorinanywaycallingin
question the validity of an Act of Parliament on any ground whatever.

There is a duty cast on this court to uphold and give effect toallprovisionsoftheConstitutionandthiscourtis
precluded from examining the validity of this objection. I hold that noquestioninvolvedintheinterpretationofthe
Constitution has arisen in this casenecessitatingareferencetotheSupremeCourtunderArticle125(1)ofthe
Constitution.
Next Mr. Athulathmudali made four main submissions, viz.,
(1) Lack of fairness in the expulsion inquiry.
(2) Departure from the U.N.P. guidelines (marked P16) for the conduct of disciplinary inquiries.
(3) No fair report.
(4) Misdirection on the burden of proof and the quantum of proof.
He also submitted that if his application is allowed the U.N.P. hierarchy could hold another inquiry.
It is well to note that section 63 (1) of the Provincial Councils Elections Act bears almost the same wording asArticle99
(13) (a) which is applicable in respect of Members of Parliament. In the case of expulsionofMembersofParliament,the
expulsion can be challenged by applying to the Supreme Court by a petition to be heard by three Judges of the Supreme Court.
It should be kept in mind that the question to be determined in both instances is whether the "expulsionwasinvalid".The
meaning of these words has not been defined either in the Constitution or the Provincial Councils Elections Act.
In 1991 eight Members of Parliament were expelled by the U.N.P. and by agreementeightpetitionswereheardtogetherby
three Judges of the Supreme Court in Lionel Gamini Dissanayake et al v. M. C. M. Kaleeletal(1).Theirjudgmentsafford
considerable guidelines in the matter before us. In his judgment M. D. H. Fernando, J. stated as follows:
"Our jurisdiction under Article 99 (13) (a) is not a form of judicial review, or evenofappeal,butratheranoriginal
jurisdiction analogous to an action for a declaration, though it is clearly not a re-hearing. Are we concerned only withthe
decision making process, or must we also look at the decision itself? Article 99 (13) (a) requires us to decidewhetherthe
expulsion was valid or invalid: some consideration of the merits is obviously required... Had these proceedingsbeenpurely
by way of judicial review, it may well be that we would have to shut our eyes to the merits of the decision,andlookonly
at the defects in the decision making process. But it is accepted that our jurisdiction is notrestricted.Theburden,if
any must be on the Respondents, for it is the denial of natural justice by them which has resulted in these proceedings."

Kulatunga, J. in the same case stated:
"The right of a M.P. to relief under Article 99 (13) (a) is a legal right and forms part of his constitutionalrightsasa
M.P. If his complaint is that he has been expelled from the membership of hispartyinbreachoftherulesofnatural
justice, he will ordinarily be entitled to reliefand this Court may not determine such expulsion to be validunlessthere
are overwhelming reasonswarrantingsuchdecision.Suchdecisionwouldbecompetentonlyinthemostexceptional
circumstances, permitted by law and in furtherance of the public good the need for which should be beyonddoubt.As
Megarry, J. said in Fountaine v. Chesterton (2) (surpa) 'If there is anydoubt,theapplicabilityoftheprinciplesof
natural justice will be given the benefit of that doubt' (cited by Megarry J. in John v. Rees (3)) and the expulsion willbe
struck down."
To these observations, with which I am in respectful agreement, I wishtoaddthatbysuchanexpulsionaProvincial
Councillor (and also an M.P.) loses not only his office as a member ofthatbody,butalsohissalary,allowancesand
various other entitlements. It is a matter of great importance to him. In deciding the questionwhethertheexpulsionwas
valid, the reasons and justification therefor should also have to be looked intoalso whether there was afairandproper
inquiry having regard to the principles of natural justice, prior to the expulsion.

The judgment of M. D. H. Fernando, J. quoted above suggests that the burden is on the respondents to show that theexpulsion
was valid.
Kulatunga, J. held that if the expulsion was in breach of therulesofnaturaljusticethememberwillordinarilybe
entitled to relief unless there are overwhelming reasons in the most exceptional circumstances warranting the expulsion.
Mr. Athulathmudali submitted that it being a matter of status, the proof should be beyond reasonable doubt.
Section 63 (1) of the Provincial Councils Elections Act provides for anexpelledmembertoapplytothiscourtfora
determination that the expulsion was invalid. The normal rule is that he who assertsmustprove,andonthisbasisthe
petitioner must establish that the expulsion was invalid. The Supreme Court in the judgments quoted above did notholdthat
in normal circumstances where the rules of natural justice have been followed, the proof that the expulsion was validshould
be established beyond reasonable doubt, but indicated that the burden wasontherespondentstojustifytheexpulsion.
Therefore I cannot accept Mr. Athulathmudali's submission that proof should be beyond reasonable doubt. In my viewitwould
be sufficient in normal circumstances for the respondents to satisfy this court that the expulsion was valid.

The same principles applicable to Administrative Law are applicable in this case. In the well-knowncaseofTheBoardof
Education v. Rice (4) Loreburn, L.C., stated as follows:
"Comparatively recent statutes have extended, if they have not originatedthepracticeofimposingupondepartmentsof
officers of State the duty of deciding or determining questions of variouskinds.Inthepresentinstance,asinmany
others, what comes for determination is a matter to be settled by discretion, involving no law. It will, Isuppose,usually
be of an administrative kindbut sometimes it will involve matter of law as well as matter offact,orevendependupon
matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain thefacts.I
need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lyingupon
every one who decides anything. But I do not think they are bound to treat such a question as though it wereatrial.They
have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they thinkbest,
always giving a fair opportunity to those who are partiesinthecontroversyforcorrectingorcontradictinganything
prejudicial to their view. "
In another leading case, namely that of Ridge v. Baldwin (5), Lord Hodson statedthatthreefeaturesofnaturaljustice
stand out -
(1) The right to be heard by an unbiased tribunal
(2) The right to have notice of charges of misconduct
(3) The right to be heard in answer to those charges.

Wade on "Administrative Law" (5th Edn. 1982 at p.481) states as follows-:- .
"What is essential is substantial fairness to the person adversely affected. But this may sometimesbeadequatelyachieved
by telling him the substance of the case hehastomeet,withoutdisclosingthepreciseevidenceorthesourceof
information."
These matters were considered again by the Privy Council in the case of The University of Ceylon v. Fernando (6).
"These rights have been defined in varying language in a large number of cases covering a wide field. Their Lordships donot
propose to review these authorities at length, but would observe thatthequestionwhethertherequirementsofnatural
justice have been met by the procedure adoptedinanygivencasemustdependtoagreatextentonthefactsand
circumstances of the case in point. As Tucker L.J. (as he then was) said in Russell v. Duke of Norfolk,(7) thereareinmy
view no words which are of universal application toeverykindofinquiryandeverykindofdomestictribunal.The
requirements of natural justice must depend on the circumstances of the case, the nature oftheinquiry,therulesunder
which the Tribunal is acting, the subject matter that is being dealt with, and so forth.IntheearliercaseofGeneral
Medical Council v. Spackman(8) Lord Atkin (at page 638) expressed a similar view in these words:'someanalogyexists,no
doubt, between the various procedures of this and other not strictly judicial bodies, but I cannot think thattheprocedure
which may be very just in deciding whether to close a school or an insanitaryhouseisnecessarilyrightindecidinga
charge of misconduct against a professional man. I would, therefore, demur to any suggestion that the words of LordLoreburn
L.C. in The Board of Education v. Rice(4) afford a complete guide to the General Medical Council intheexerciseoftheir
duties.

With these reservations as to the utility of general definitions in this branch of the law, itappearstotheirLordships
that Lord Loreburn's much quoted statement in Board of Education v. Rice (supra) still affords as good ageneraldefinition
as any of the nature of and limits upon the requirements of natural justice in this kind of case."
Getting on to the facts of this case, a serious allegation has been made by the petitioner that R1 or R5 do not containtrue
and accurate record of the proceedings.
According to the petitioner no inquiry against him took place on 21.5.92. Reliance was placedontheaffidavitmarkP18,
which was affirmed to by J. E. P. B. S. Samaratunga, former Chairman of the Central ProvincialCouncil,whotoohadbeen
dismissed in like manner by the U.N.P. He had filed anapplicationinthiscourtbearingNo.473/92similartothis
application against the very same respondents (except that the 5th respondent was the SecretaryoftheCentralProvincial
Council).
In this affidavit P18 dated 2.11.92 he has stated that though he was summoned for the first inquiry to be held at1.30p.m.
on 21.5.92, his inquiry began only at 3 p.m. and concluded at about 4.30.p.m., and that the disciplinaryinquiryagainstP
R. de Silva (the petitioner) was not held on that day.

Mr. K. N. Choksy referred to the fact that Samaratunga in his own counter-affidavit dated 10.8.92 filed in his owncasehas
stated in paragraph 7: "it was agreed that the inquiry would commence on the 21st of May 1992 at 1.30 p.m.". Inparagraph8
he has gone on to say: "on 21st May 1992 the said purported inquiry commenced at 1.30 p.m.".
When Samaratunga affirmed to the counter-affidavit dated 10.8.92 for the purpose of his own application, no doubt hismemory
would have been fresher. Therefore what he stated in his counter-affidavit dated 10.8.92 in his ownapplicationNo.473/92
(which record we have perused at the hearing) has to be accepted in preference to his affidavit dated 2.11.92 (P18) filedin
this case. Therefore I can come to the conclusion that this inquiry against Samaratunga commenced at 1.30p.m.,lastedfor
about 1-112 hours (as stated by him) and concluded at about 3 p.m. Then of course the inquiry against thispetitionercould
have commenced at 4 p.m. (as stated in R1 A filed by the 1 st to 4th respondents).
It was urged by Mr. Athulathmudali, relying on the Hansard of 21.5.92, that the members of the inquirypanelwererequired
for voting in Parliament.

Mr. Choksy submitted that the Hansard shows that just before the day's adjournment at 3.25 p.m. the division wascalledfor
and taken. Hence if the Samaratunga inquiry was concluded at 3 p.m., there was ample time forthemembersoftheinquiry
panel to come from the inquiry room to the chamber of Parliament for the casting oftheirvoteshortlybefore3.25p.m.
Therefore I cannot accept the contradictory affidavit filed by Samaratunga. I accept asrecordedinR1andsworntoby
Festus Perera in his affidavit dated 27.10.92 filed in this case that the panel commenced the inquiry against thepetitioner
at 4 p.m. on 21.5.92.
I reject the petitioner's allegation that his inquiry did not commence on 21.5.92.
Samaratunga in his own application bearing No. 473/92 had made similar allegations in respect oftheinquiryheldagainst
him as in this case (namely, it was contrary to the principles ofnaturaljustice noprecisechargeswereframed no
reasons givenand that the expulsion was ultra vires the party constitution and/or party guidelines).
It is noteworthy that Samaratunga had by a letter dated 27.5.92 (marked "X" in that case) sent to Festus Pererainhisown
official note head stated as follows:
"I take this opportunity to sincerely thank you for the kind attitude and the pleasantmannerinwhichyouconductedmy
disciplinary inquiry, and also proud indeed of the impartiality in the proceedings.

Whatever decision you take, I will be grateful and shall repeat that I will not forget your kind impartial manner adoptedat
the inquiry".
At the hearing we were informed that consequent to the production of this letterSamaratunga'scounselhadwithdrawnhis
petition and the bench of three Judges in that case had made order on 19.8.92 dismissing the petition without costs.
The inquiry against Samaratunga was conducted inanimpartialmannerbyFestusPereraasevidencedbythesplendid
compliment paid by Samaratunga himself in the writing quoted above.
Festus Perera has sworn an affidavit dated 27.10.92 where he swears that documents R1 to R5, together withannexuresX1to
X10, are true and accurate copies of the proceedings of the inquiry held bythepanelandthedocumentsmarkedatthe
inquiry, and that R6 is a true and accurate copy of the report of the panel of the disciplinary committee.
Apart from the bare statement of the petitioner, there is nothing to indicate that the proceedings have beenfalsified.The
petitioner's attempt to impugn the proceedings by submitting Samaratunga's affidavit has failed. Therefore theseallegations
cannot be accepted.

There is reference to the dock statement made by the late Buddharakkita Thero, a convicted accused,inthePrimeMinister
Bandaranaike assassination case, where he had alleged that Kalinga Obeywansa had fabricated the case against him.Thisdock
statement has no value whatsoever because it was disbelieved and discreditedhence he was convicted in thatcase.Ifthis
dock statement was believed or atleasthadcreatedareasonabledoubtastothetruthoftheprosecutioncase,
Buddharakkita Thero would have been acquitted. Hence thisdockstatementevenifithadbeenproducedhadnovalue
whatsoever and need not have been recorded at all.
The letter dated 8.6.92 addressed to Laura de Zoysa by P. M. Premachandra, General SecretaryoftheD.U.N.F(markedP10)
(X10) is a letter between third parties (res inter alios) and does not affect the petitioner in this case and isirrelevant.
However, this letter has not influenced the inquiry panel in their decision.
A perusal of the proceedings of R1 (translation R1A)showsthattheinquirycommencedon21.5.92at4p.m.atthe
Parliamentary complex and that the charges were broadly as follows:
(1) Mr. P. R. de Silva functioning as a member of the D.U.N.F
(2) Formation of organizations and obtaining membership for the D.U.N.F
(3) Functioning as a member of the Galle district committee of the D. U.N.F
At this stage the petitioner had answered to the charges stating that he did not work against the U.N.P. and that he wasnot
accepting the charges. This clearly shows that the charges were explained to him and he even replied to the charges.
The charges in an inquiry of this type need not be framed with the same precision as in an indictment in a criminal trialin
the High Court.

Paragraph 3 of the U.N.P. Guidelines for the conducting of disciplinary inquiries {P16) filedwiththeapplicationstates
that if the explanation submitted is unsatisfactory or unacceptable and afurtherinquiryisnecessary,achargesheet
should then be prepared by the panel and forwarded to the member.
Mr. Athulathmudali strongly urged that no charge sheet had been prepared by the panel andforwardedtothepetitionerin
this case and that the guideline (P16) was disregarded.
By letter dated 15.4.92 (P2) the petitioner was informed of the charges against him. The first paragraph inthisletterP2
explains the gist of the charges. The petitioner himself has answered to these chargesbyhisletterdated24.4.92(P3)
where he had denied the charges. He had nowhere asked for further particulars nor stated that the charges were vague.
In the case of Sloan v. General Medical Council the Privy Council upheld an order of the General MedicalCounciltoremove
the name of the appellant from the medical register notwithstanding the apparent vagueness of the charge.
As laid down by the Supreme Court in the case of Chulasubadra de Silva v. The University of Colombo andOthers(9),wherea
party is made aware of the particulars of the offences she was alleged to have committed, that was sufficient informationof
the charge against her.
In this case the petitioner had been informed well in time of the gist of the charges againsthim.Thereforethereisno
substance in this contention.
The petitioner alleges that he was not informed that certain witnesses would be called to give evidence against him.Atthe
end of
the day's proceedings of 21.5.92 (marked R1A) there is a record to the effect that the Chairman (Festus Perera) informedthe
petitioner that the following persons would be giving evidence: (1) Berty Kulatunga, (2) N. N. Weeramuni, (3) WilbertSoysa,
(4) P Praveen de Silva, (5) M. Wilson Soysa, and (6) Dharmasena Mendis.
In paragraph 6 of his counter-affidavit the petitioner says that he could have usedthedocumentsP9andP10tocross-
examine witness Dharmasena Mendis. However P9 is dated 18.6.92 and was not in existenceon2.6.92whenDharmasenaMendis
gave evidence (vide R2A).

As regards P10 the petitioner could have himself questioned Dharmasena Mendis regarding the sendingofP10.Regardingthe
allegation in paragraph 22(b) of his petition that the witness Praveen de Silva'sfather(VictordeSilva)wasdetected
stealing goods belonging to Revatha Junior School office andthatthepetitionerhadhelpedhissister,whowasthe
Principal of that school, to take him into custody, resulting in a case being filedintheBalapitiyaMagistrate'sCourt
against his father, he could well have cross-examined Praveen deSilvaonthismatterasthesearefactswithinhis
knowledge.
Paragraph 5 of the Guidelines for the conduct of disciplinaryinquiries(P16)specificallysaysthatamemberisnot
entitled to be represented by lawyers.
In Enderby Town Football Club v. The Football Association Ltd. Lord Denningposedthequestionwhetherapartywhois
charged before a domestic tribunal is entitled as of right to be legally represented and said that much depends onwhatthe
rules say about it.
Here in this case the rules forbid such legal representation.
A point has been made that the petitioner was not furnished with copies of the inquiry proceedings. Itisdoubtfulwhether
the petitioner was, as of right, entitled to obtain copies of the proceedings as he was present throughouttheinquiry.As
the petitioner himself was present right throughout the entire inquiry, he could have kept his own notes.
Mr. Athulathmudali has also submitted that there was a misdirection on the burden and quantum of proof. It should be keptin
mind that the strict rules of evidence applicable in a court of law do not governthismatter.Evenhearsayevidenceis
admissible though the weight attached to such evidence can vary.
In Wade's "Administrative Law" (5th Edn. 1982) at page 805 it is stated as follows:
"A statutory tribunal is not normally bound bythelegalrulesofevidence.Thusinanindustrialinjurycasethe
commissioner was entitled to receive evidence at the hearing about previous medicalreportswhichtechnicallywouldhave
been inadmissible under the rule against hearsay". (R. v. Deputy Industrial Injuries Commissioner ex p. Moore(10)).
Diplock, L.J. in this case at page 84 stated as follows:
... those technical rules of evidence, however form no part of the rules of natural justice. The requirementthataperson
exercising quasi-judicial functions must base his decision on evidence means no more than that it must be basedonmaterial
which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to showthe
likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant.Itmeansthat
he must not spin a coin or consult an astrologerbut he may take into account any material which, asamatterofreason,
has some probative value in the sense mentioned above. If it is capable of having anyprobativevalue,theweighttobe
attached to it is a matter for the person to whom Parliament has entrusted the responsibilityofdecidingtheissue.The
supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substituteitsownview
for his".
The inquiry panel in its report, R6, dated 29.7.92 has examined the evidence and stated thatontheoralanddocumentary
evidence they are satisfied that the petitioner is guilty of the charges. There has been no misdirection onthequantumor
burden of proof.
There are newspaper extracts where the petitioner's name appears as a member of the D.U.N.F, but the petitioner hasmadeno
attempt to refute them.
One is X6, which is a list of the Working Committee of the D.U.N.F. published in the Dinamina newspaper of 11.3.92.
Another is X8, which is the list of the Galle District Organization of the D.U.N.F published in the Daily News of 20.5.92.
In X9, which is an extract from the Dinamina newspaperof20.5.92givingthelistofmembersoftheGalleDistrict
Organization, the name of P. R. Silva appears. The petitioner has tried to make out that it was someotherpersonandnot
himself. He was questioned several times but he was unable to identify any other person who bore the nameP.R.Silvawho
was engaged in political activities in the South. I hold . that this is a reference to the petitioner:
It had been established that the petitioner took no steps to refute these newspaper reports and todisclaimanyconnection
with the D.U.N.F.
Apart from that, at the inquiry before the three member panel, there was the direct evidence of Wilson Soysa, whosaysthat
the petitioner gave him two forms (P7) to enrol him as a member of the D.U.N.F. and these twoformswereproducedatthe
inquiry. He was not able to adduce or even suggest any reason why Wilson Soysa should give false evidence against him.

Then there is the evidence of Nalaka Weeramuni, who says that he was the petitionerassociatingwiththemembersofthe
"Eight Group" (Ate Kalliya), which is a coterie of the D.U.N.F He had also seen the petitioner participatinginaD.U.N.F.
meeting at Kalutare. He had seen the petitioner on the stage at that meeting.

These are the main items of evidence against the petitioner. There are other items of evidence when taken as a wholeclearly
reveal that the petitioner has acted in violation of party discipline by promoting the D.U.N.F and tryingtoenrolmembers
to the D.U.N.F while being a Provincial Councillor on the ticket of the U.N.P.
The fact that Kalinga Obeywansa took a keen interest in this inquiry against the petitioner is immaterial if theallegations
have been proved by independent witnesses, which has been done in this case.
At the hearing it was accepted that the inquiry panel consisting of Festus Perera, E. Paul PereraandJohnAmaratungaare
all lawyers. Being lawyers they would have been aware of the necessity to comply with the principles of naturaljusticeand
to act fairly.
They have given their report R6, which is dated 29.7.92, which has dealt with the evidence and come totheconclusionthat
the petitioner has violated clauses 3 (1) (a), (b) and (d)andclauses9(d)and(g)ofthepartyconstitutionand
recommended disciplinary action against him.
Briefly stated, these clauses 3 (1) (a), (b) and (d) enjoin members to accept the principles, policy and code ofconductof
the party and to conform to its constitution and standing ordersalso not take part In anypoliticalorotheractivities
which might conflict with these undertakings.
Clause 9 (d) stated that a candidate for election on the party ticket has to give apledgethatifhesucceedshewill
conform to the principles, policy, programme and code of conduct of the party and that if he fails todosotheExecutive
Committee shall take all necessary action for the punishment of the offender.
Clause 9 (g) states that any candidate who, after election, fails to act in harmony with the principles,policy,programme,
rules of conduct and standing orders, shall be considered to have violated the constitution.
In the Supreme Court decision mentioned earlier and also inanothersimilarSupremeCourtdecision,namely,Ariyaratne
dayatillake and S. A. Muthu Banda v. M. C. M. Kaleel, et al(11) it was held that the National Executive Committee (whichhas
disciplinary power under Clause 8 (3) of the party constitution) can vest such power in the Working Committee.
On 21.5.92 at 4.00 p.m., at the commencement of the inquiry, the Chairman of thethreememberpanel,FestusPerera,had
informed the petitioner that this inquiry was being held under the authority of the Disciplinary CommitteeandtheWorking
Committee - vide R1 A. It may be that, because thesethreemembersbeinglawyers,theywereauthorisedtoholdthis
inquiry.
The Working Committee had considered the charges, the evidence, the position taken up by the petitioner, the reportR6,and
the recommendation of the disciplinary committee and decided. that the petitioner had violated the aforesaid clausesofthe
party constitution and decided to expel the petitioner.
There is ample evidence to justify these findings.

One of the grounds taken up in the petition is that in any event the expulsion is disproportionatetothechargesasthe
petitioner had been a loyal member of the U.N.P. for a long period of 25 years. The question of appropriate punishmentisa
matter eminently within the discretion of the party. Every political party likes to retain andenlargeitsmembership.No
political party would expel any of its members, particularly a long-standing member, unless there is a verygoodreasonto
justify doing so.

Having regard to the charges and the evidence in this caseI cannot saythattheexpulsionisdisproportionatetothe
charges which have been proved.
I am satisfied that in this case there was a fair inquiry where the charges wereexplainedandevidencewasledinthe
presence of the petitioner who was given an opportunity to cross-examine these witnesses. The petitioner wasalsogivenan
opportunity to rebut the charges and to explain his position and to lead evidence. The rules ofnaturaljusticehavebeen
substantially complied with and there was ample evidence to prove the charges.
I hold that the expulsion was valid and that the petitioner is not entitled to any reliefundersection63(1),andthe
petition has to be dismissed.
There is one other matter to which reference must be made. Section 63 (1) of the Provincial Councils ElectionsActrequires
this determination to be made within two months of the filing of the petition.Inthiscasethepetitionwasfiledon
15.9.92. The dates of argument were 6th, 11th, 12th and 13th of November 1992 which were fixed to suit busy counsel.Written
submissions were tendered on 20.11.92. Therefore it was well nigh impossible to make this determination within two monthsof
the filing of the petition.
At the hearing counsel agreed that this provision was directory and not mandatory thougheveryeffortshouldbemadeby
court to make this determination within two months and this decision should not be taken as a precedent.
For these reasons I dismiss this application with costs payable by the petitioner to the 1 st, 2nd, 3rd and 4th respondents.
PALAKIDNAR, J. P/CA - I agree.
WEERASEKERA, J. - I agree.
Application dismissed.


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