Legal Services and Laws of Sri Lanka

SLR-1997 Vol.1-P393

SLR - 1997 Vol.1, Page No - 393



G. P. S. DE SILVA, C.J.,
S.C. NO. (SPL.) 248/96.
FEBRUARY 3, 5, 6 AND 7, 1997.
Expulsion of a member of a recognized political party - Article 99(13) (a) of the Constitution -Audi alteram partem rule.

By a letter dated 30.11.96 Sri Lanka Pragathisheeli Peramune (SLPF) a recognized political party which partyisrepresented
in Parliament by the petitioner purported to expel the petitioner from the party and sought tonominateanothermemberof
the party as member of Parliament. The said expulsion was a sequal to an allegation that the petitioner had ceasedtobea
member of the party by reason of his failuretoobtainpartymembershipfor1996.Therespondentsclaimedthatthe
petitioner forfeited his membership by refusing to pay the membership fee for that year. The allegationwasdeniedbythe
petitioner but the party proceeded to expel him without holdinganinquiryintothedispute.Itwasarguedthatthe
petitioner was never expelled from the party but ceased to be a member of the SLPFhence he is not entitledtoinvokethe
jurisdiction of the Court under Article 99(13) (a).

1. The relevant document constitute ex facie a purported expulsion of the petitioner fromtheSLPF hencethecourthas
jurisdiction to entertain his application.
2. The respondents failed to establish that the petitioner ceased to be a member of the SLPF byreasonofthefailureto
obtain party membership for 1996. This apart, there has been a violation of the audi alteram partem rule bythefailureof
the respondents to hold an inquiry and to give an opportunity to the petitioner to meet thecaseagainsthim.Hence,the
expulsion of the petitioner was invalid.

Case referred to:
1. Gamini Dissanayake v. M.C.M. Kaleel and Others. (1993) 2 Sri L.R. 135, 185.

APPLICATION under and in terms of Article 99(13) (a) of the Constitution challenging the expulsionofthepetitionerfrom
the S.L.P.F.
D. S. Wijesinghe, P.C., with J. C. Weliamune and Miss. Lilanthi de Silva for petitioner.
W P. Gunatilake with J. A. J. Udawatte and Upul Gunaratne for .1st, 2nd and 3rd respondents.
M. B. Ratnayake with Sunil Watagoda for 4th respondent.
5th, 6th and 7th respondents absent and unrepresented.

February 19, 1997.
The petitioner is a Member of Parliament for the Hambantota Electoral District nominatedbythe3rdrespondent,theSri
Lanka Pragathisheeli Peramuna (S.L.P.F.), a recognised political party.Bythisapplicationthepetitionerinvokesthe
jurisdiction of this Court in terms of Article 99(13)(a) of the Constitution seekinginteralia,adeclarationthathis
"purported expulsion" from the S.L.P.F is invalid. The 1st respondent is the President of theS.L.P.F.The2ndrespondent
functions as the Secretary of the S.L.P.F. The 4th respondentistheJanathaVimukthiPeramuna(J.V.P.),arecognised
political party. The 5th respondent (Jathiya Galawaganeema Peramuna) is also a political party. According tothepetitioner
the 5threspondent is a "coalition" of the 3rd and 4th respondent parties.

At the General Elections held in August 1994 the S.L.P.F. became entitledtooneparliamentaryseatfortheHambantota
electoral district. The petitioner was nominated as the Member of Parliament for the electoral district of Hambantota bythe
S.L.P.F He took his oaths on 6.1.95 and he continued to sit in Parliament till 13.12.96, that is, till the end of sessionin
1996. However, on or about 26.9.96 he received a letter dated 16.9.96 (marked P21) signed bythe1stand2ndrespondents
informing him that he has failed to obtain "valid party membership for the year 1996". P21 (as translated) reads as follows:
"Sri Lanka Progressive Front
7th Lane,
Pagoda Road,
Sri Lanka

Mr. Galapatti Arachchige Nihal,
Mutumala Mawatha, Pallikkudawa,

Notice of Termination of Membership
Sir ,
It has been revealed that you, Galappaththi Arachchige Nihal who was nominated and appointed as a Member ofParliament
of the Sri Lanka Progressive Front for the Electoral District No. 9 Hambantota at the Parliamentary Elections 1994, for
the vacancy of Member of Parliament for the Party have not obtained Party Membership, valid for 1996.
Therefore the decision of the Central Committee dated 7.9.96 to consider having vacated the Membership with effect from
1.5.96 has been approved by the Politburo that met on 13.9.96. You may submit an appeal by registered post if youwish
to give an explanation within 14 days from date hereof.
Yours faithfully,

Sgd. Ariya BulegodaSgd. Dr. Kamal Karunadasa
Chairman Chief Secretary (seal)
Sri Lanka Progressive Front
Dr. Kamal Karunadasa
Sri Lanka Progressive Front
copies: 1. Commissioner of Elections
2. Secretary General of Parliament"

By R10 dated 27.9.96 (addressed to the 1strespondent)andP23dated1.10.96(addressedtothe2ndrespondent)the
petitioner strongly protested against the contents of the letter P21. In R10 and P23 he clearlyasserted,interalia,(a)
that he has duly obtained membership in the S.L.P.F., (b) that he has not ceased to be a member of the S.L.P.F., (c) thathe
continues to be a member of the S.L.P.F. (d) that the ConstitutionoftheS.L.P.F.doesnotrequireamembertopay
membership fees and in fact no member was required to pay membership fees.
The petitioner's complaint to this court does not by any means rest with the letter P21 for he received copiesoftwo
letters addressed to the Secretary General of Parliament and to the Commissioner of Elections. Both lettersweresignedby
the 1st and 2nd respondents and were dated 30.11.96. The letter addressed to the Secretary GeneralofParliamenthasbeen
marked as P52A while the letter addressed to the Commissioner of Elections has beenmarkedasP27.Bothlettersarein
identical terms and (as translated) they read as follows:

"Notice of Cessation of Party Membership
It is hereby notified that at the party Convention oftheSriLankaProgressiveFrontheldon30.11.96itwas
unanimously decided to expel Mr. Galappaththi Arachchige Nihal who was nominated by our Party as a Member of Parliament
for the Electoral District No. 9, Hambantota to represent Sri Lanka Progressive Front and that therefore he hasceased
to be a member of our Party.
It is most respectfully requested to give us the opportunity to nominate anothermemberofourPartytofillthe
vacancy in his place.
Yours faithfully,
Sgd. Ariya BulegodaSgd. Dr. Kamal Karunadasa
S. L. P. F.

copies: 1. Mr. Galappaththi Arachchige Nihal,
Mutumala Mawatha,
Pallikkudawa, Tangalla
2. Hon. Ratnasiri Wickremanayake
Minister of Parliamentary Affairs."

The petitioner, relying on P52A and P27, contends that the respondents purported to expel him from theS.L.P.F.andheis
therefore entitled to invoke the jurisdiction of thiscourtintermsoftheprovisotoArticles99(13)(a)ofthe
Constitution. On the other hand, the case for the 1stto 3rd respondents (hereinafter referred toastherespondents)is
that the petitioner was never expelled from the S.L.P.F but that he ceased to be a member of the S.L.P.Fbyreasonofnot
having "obtained party membership valid for 1996." The respondents rely on P21, on R6 (the minutesoftheS.L.R.FCentral
Committee meeting held on 7.9.96), on R9 (the report of the S.L.RF politburo meeting held on13.9.96)andR12(theParty
Convention held on 30.11.96) in support of their case.
Upon the case as presented on behalf of the respondents, the first question that arises for decision is the date of the
cessation of the petitioner's membership of the party. It seems to me that the evidence on this crucialpointisnotonly
unclear but is also of a contradictory nature. In R6 and in P21 the date given is 1stMay1996.Inparagraph61ofthe
objections filed on behalf of the respondents the date isgivenas7thSeptember1996whileinparagraph68ofthe
objections the date specified is 16th September 1996. In paragraph 34 of the written submissions of the respondents thedate
is stated to be 31st December 1995.
As seen from paragraph 67 of the objections of the respondents the gravamen of the chargeagainstthepetitioneris
that he has ceased to be a member of the S.L.P.F by his "refusal to pay the membership for the year 1996 ...".Thereisno
evidence whatever that the petitioner was called upon to pay the membership subscription for 1996 and that he refusedtodo
so. Nor is there evidence as to the precise amount of the subscription fee for membership for the year 1996 and thedateon
which payment became due for 1996. The affidavit of the Treasurer of the S.LPF (R14)doesnotthrowanylightonthese
crucial matters. What is more, neither the party Constitution (P17) nor any rule, regulation or resolution validly passedin
terms of the party Constitution makes any provision for the cessation of membership by reasononlyofnon-paymentofthe
subscription fee for one year. It is relevant to bear in mind that the petitioner is not anoffice-bearerbutanordinary
member of the party. Any rule of resolution passed by the Central Committee or other body must be shown to be binding onthe
petitioner and that it has been brought to his notice. There is no evidence at alltoestablishthatthepetitionerwas
aware of the contents of R6 and R9. In short, the respondents have failed to establish the all-importantfact,namelythat
the payment of an annual subscription fee is a condition precedent to the petitioner continuing to remainamemberofthe
SLPF In this regard, R4 is of no relevance as it is only an application for membership of the party made by the petitioner.
On a consideration of the matters set out above and the material on record, I hold that the respondents have failedto
establish that the petitioner has ceased to be a member of the S.L.P.F by reason of the failure to obtain"partymembership
for 1996" (vide P21).

This apart, the other cogent ground upon which the petitioner assailed the "purported expulsion" is thattherehadbeena
clear violation of the audi alteram partem rule. It seems to me that this contention advanced on behalf of the petitioneris
well founded. Upon receipt of P21, the petitioner wrote R10 (dated 27.9.96) and P23 (dated 1.10.96). While R10 wasaddressed
to the 1st respondent, P23 was addressed to Secretary of the party. In R10 the petitioner specifically took uptheposition
that he has duly obtained membership of the S.L.RF, that he has not ceased to be a member of the party and that hecontinues
to remain a member of the party. In substance P23 was to the same effect.Oncethepetitionerdeniedtheclaimofthe
respondents that he had ceased to be a member of the S.L.R.F., it was incumbent upon the respondents to have held aninquiry
and to have given an opportunity to the petitioner "to explain, controvert or mitigate the case against (him)" perFernando,
J., in Gamini Dissanayake v. M. C. M. Kaleel and Others(1). This, the respondents failed to do, and the consequenceisthat
the "purported expulsion" is void.
It was further submitted as a matter of law, on behalf of the respondents, that there was no "expulsion"ofthepetitioner
from the S.L.R.F and therefore thiscourthasnojurisdictiontoentertainthepetitioner'sapplication.Withthis
submission, I am afraid, l cannot agree. The contention that there was no "expulsion" of the petitioner from theS.L.P.Fis
in the teeth of the express statements made in both P52A and P27. To my mind, there is no doubt that P27 and P52Aconstitute
ex facie a purported expulsion of the petitioner from the S. L.P.F

Finally, it was contended that this application which was filed on 30.12.96istimebarred.Thereasoningisthatthe
petitioner ceased to be a member of the S.L.P.F. on "the date on which P21 becomes effective, that iseither14daysfrom
the date of the letter (16.9.96) or 14 days after the arrival of the petitioner from abroad, that is 14daysfrom26.9.96"
(vide paragraph 10 of the written submissions dated 10.2.97 filed on behalf of the respondents). Itisclearthatonthe
respondent's own showing there is no certainty at all in regard to the operative date of P21. What is worse, P21inexpress
terms has a retrospective effectthe cessation of membership from the party is from 1.5.96. How then is theperiodofone
month to be calculated? I hold that the objection based on time bar is untenable and thatthiscourthasjurisdictionto
entertain the petitioner's application in view of P27 and P52A.

For the reasons set out above, I determine that the "purported expulsion" of the petitioner is of no force oravailinlaw
and that it is invalid. The 1st, 2nd and 3rd respondents must jointly pay the petitioner a sum of Rs. 5000/-(FiveThousand
Rupees) as costs of these proceedings.

RAMANATHAN, J. - I agree.
WIJETUNGA, J. - I agree.
Expulsion determined invalid.

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