Legal Services and Laws of Sri Lanka

SLR-1998 Vol.2-P278

SLR - 1998 Vol.2, Page No - 278







S.C. SPL NO. (E) 1 AND 2/97

JULY 24 AND AUGUST 01, 1997.

Expulsion from political party - Article 99 (13) (a) of the Constitution -Chargesandtheaudialterampartemrule-
Failure to serve charge - sheet and call for explanation - Termination of membership of Independent Group 2 in Parliament.
Expulsion from political party (EPDP) and termination of membership of the Independent Group 2 of Parliament were invalidas
there was failure to comply with the audi alteram partem rule. There was no charge - sheetservedandnoexplanationfor
alleged acts of misconduct was called for. A request by telephone to come for an inquiry is totally inadequate.
The pledge given by members (of Independent Group 2) is a contract between the parties for the purpose of the associationto
ensure conformity with party policies. Yet a fair hearing was a precondition to deprivation of rights ortotheimposition
of penalties and disabilities being an implied term of such contract.

Cases referred to:
1. Durayappah v. Fernando 69 NLR 265.

2. Amaradasa v. The Land Reform Commission 79 (1) NLR 505, 544.

3. John v. Rees (1970) Ch 345, 402.

4. Dissanayake v. Kaleel (1993) 2 Sri LR 135, 182, 234.

5. Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180.
APPLICATIONS against expulsion from political party and termination of membership of Parliamentary Group.
D. W. Abeykoon, PC with Chandrika Morawake and A. Rajeswary for petitioners.

E. D. Wickremanayake for 1st, 2nd and 15th respondents.
U. Abdul Najeem for 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 14th respondents.

Dharmapala Senaratne for the 13th respondent.
August 21, 1997

Applications Nos. (E) 1 and 2 of 1997 were heard together as the material factsarealmostidentical.Thepetitionerin
application No.1 (Mr. Ramamoorthy) is an elected Member of Parliament representing the electoraldistrictofJaffnaasa
candidate of the Independent Group No. 2 at theelectionheldon16.8.94.ThepetitionerinapplicationNo.2(Mr.
Rameshwaran) is also a Member of Parliament representing the electoral district of Jaffna as a candidate oftheIndependent
Group No. 2he, however, came into Parliament upon theresignationofanotherelectedmemberofParliamentfromthe
Independent Group No. 2. The petitioners are brothers and they are members of the recognised politicalpartyknownasthe
Eelam People's Democratic Party (EPDP). They have invoked the jurisdiction of this court in terms of Article 99 (13)(a)of
the Constitution seeking inter alia that their expulsion from the EPDPandtheterminationoftheirmembershipofthe
Independent Group No. 2 are null and void.

Admittedly, the 1st respondent who is a Member of Parliament, the Secretary-GeneraloftheEPDPandtheleaderofthe
Independent Group No. 2 addressed the letter P8 to the petitioners informing them that they have been expelled from theEPDP
with effect from 6.6.97. Similarly the 1st respondent by P9 dated 9.6.97 informed thepetitionersthathehasterminated
their membership of the Independent Group No. 2 of the electoral district of Jaffna.
P8 dated, 6.6.97.reads as follows:
1. On allegations and complaints received from members of the public, particularly from the people of the IslandsofJaffna
against you, 1, in my capacity as Secretary-General of the EPDP and Leader ofIndependentGroupNo.2oftheElectoral
District of Jaffna, constituted a Committee of Inquiry consisting of Hon. M. Chandrakumar, MP, Hon. S. Thangavel MP andHon.
S. Sivathasan MP to inquire into these allegations and complaints and submit a report to me.

The Committee of Inquiry has found you guilty of 3 out of 4 charges. The charges on which youhavebeenfoundguiltyare
annexed hereto separately.
2. You have made disparaging remarks about our Party and its policy and about me in my role as Secretary-General of theEPDP
and Leader of Independent Group No. 2. Your remarks have been reported in the undermentioned news papers and television.
The Island of 6th May, 1997
Divaina of 6th May, 1997
The Midweek Mirror of 7th May, 1997
Dinamina of 7th May, 1997
Yukthiya of 11th May, 1997
Lakbima of 11th May, 1997
Divaina of 13th May, 1997

The Island of 13th May, 1997

Virakesari of 14th May, 1997

Daily News of 26th May, 1997

Sarinigar of 22nd May, 4th June, 1997

Interview given to MTV Television on 7th May, 1997

Despite the wide publicity given to the publications referred to above, you have not denied making thesaidremarkseither
to the said newspapers, the MTV television or to the party. In these circumstances there can be no doubt whatsoeverthatin
fact the contents of the newspaper articles and the interview given to MTV television correctly published your remarks.
The Central Committee of the EPDP which met to discuss your remarks referred to above, hasfoundyouguiltyofviolating
party discipline.
3. In these circumstances the Central Committee of EPDP has directed me to inform you that you have beenexpelledfromthe
EPDP with effect from the date of this letter.
Yours truly,


K. N. Douglas Devananda, MP.,

Secretary-General, EPDP.

Copy to:
1. Secretary-General of Parliament
2. Commissioner of. Elections.
P8A sets out the charges referred to in P8. The charges against the petitioner in application No. 1 read as follows:
The charges on which Hon. Rajendram Ramamoorthy, MP alias Seelan had been found guilty
1. On the explicit directions given by the Hon. Rajendram Rameshwaran, MP and the Hon. RajendramRamamoorthy,MP,someof
the party cadres were compelled to work for Rajendram Ramanathan alias Raghu, brotherofbothHon.RameshwaranandHon.
Ramamoorthy, their parents and their family members, attending to the following householdactivitiesandprivatebusiness
activities of Raghu:
cooking for the household of Raghu and parents
shallow water fishing
salting and
drying of fish drying of breece de mer
cleaning of fishing boats

Party members who questioned regarding these arrangements were toldbyHon.RameshwaranandHon.Ramamoorthythatthe
fishing business was being undertaken by them to generate funds for the EPDP. Party members who refusedtocarryoutsuch
tasks were physically assaulted or otherwise punishedbyHon.RameshwaranandHon.Ramamoorthy,onfalsechargesof
violating party rules. Several members of the party were kept in solitary confinement in a dark room for a varying numberof
days. Hon. Ramamoorthy thus misused his position as an EPDP Member of Parliament.

2. Hon. Rajendram Ramamoorthy, MP alias Seelan and Nicholas alias Lingam, driverofHon.Ramamoorthy,duringtheperiod
June/ July, 1995, had in the name of the EPDP, ordered fishermen of Analaitivu and Eluvaitivu, thattheyshouldhenceforth
sell all their catch of crabs, prawns, lobsters, breech de mer and fish only to Rajendram Ramanathan alias Raghu, brotherof
Hon. Ramamoorthy at prices fixed by Rajendram Ramanathan alias Raghu, these prices being much lower than marketprices.The
fishermen were thus compelled to sell their catch at low prices for more than one year.Thus,Hon.R.Ramamoorthy,while
being a Member of Parliament belonging to the EPDP misused his public position and deprived the fishermen ofAnalaitivuand
Eluvaitivu of part of their legitimate earnings.
3. Hon. R. Rameshwaran, in September 1996, in his capacity as Member of Parliament and EPDP OrganiserfortheIslandshad
offered to transport to Colombo free of charge, packages ofhighqualityseasonedtobaccobelongingtoindividualsin
Analaitivu, and deliver to business establishments in Colombo specified by the owners. After Hon.R.Rameshwaranaccepting
the packages of tobacco in Analaitivu and transporting them out of Analaitivu, the owners heard nothing abouttheirproduce
for some months. When they contacted Hon. R. Rameshwaran, he directed them to contact hisbrotherHon.R.Ramamoorthyin
Colombo who was described by Hon. R. Rameshwaran as the person inchargeofdeliveryinColombo.Whentheindividuals
contacted Hon. R. Ramamoorthy in Colombo, he directed them to go over to an establishment, other than those specified bythe
owners, and to collect their dues. When the owners of the tobacco went over to that establishment, they were asked topaya
transportation charge of Rs. 800 per package as against the normal charge of Rs. 300 perpackage.Furthermore,theyfound
that their high quality tobacco had been replaced with low quality tobacco in the packages. Everyone of theownerssuffered
financial loss.

This is a case of intentional cheating of innocent tobacco farmers by both Hon.R.RameshwaranandHon.R.Ramamoorthy,
resulting in tarnishing the reputation of the EPDP.
The petitioner in application No. 2 was found guilty of 8 charges. Some ofthesechargeswerethesameasthecharges
against the petitioner in application No. 1. There is little doubt that thechargesagainstbothpetitionerswereofa
serious nature. As submitted by Mr. Wikramanayake, for the 1st, 2nd and 15th respondents, the expulsionfromtheEPDPwas
for two reasons. Firstly, the petitioners were found guilty of charges set out in P8A. Secondly, the petitioners wereguilty
of making disparaging remarks concerning the 1st respondent and the EPDP in newspapers and at an interview to the MTV.

The position of both the petitioners is that they were totally unaware of the charges and thereasonsfortheirexpulsion
from the EPDP until they received P8. The principal submission of Mr. Abeykoon for thepetitionersisthattheexpulsion
from the EPDP and the termination of the membership of the Independent Group No. 2 are invalid for wantofcompliancewith
the audi alteram partem rule. It seems to methatthisisthecrucialissuethatarisesforconsiderationinboth

Mr. Wikremanayake strenuously contended in his oral and written submissions that there was no violation of theaudialteram
partem rule. Counsel urged that the petitioners were aware not only of the allegations being made against them butalsothe
nature and volume of the evidence that was available. Mr. Wikremanayake referred us in particular to the followingaverments
in the affidavit of the 1st respondent (paragraphs 31, 32 and 33) filed in application No. 2:
31. by the beginning of May, 1997, it was clear from the investigations of the committee thattheallegationsagainstthe
petitioner and his brother were serious and that there was a volume of evidence against them. I state that thereafter onthe
2nd May, 1997 I telephoned the petitioner and his brother Ramamoorthy who live in adjoining houses at Madiwelaandinformed
them that it was the suggestion of the committee that a formal inquiry be held. I did suggest to the petitionerandbrother
that in order to avoid embarrassment to themselves and the party theyshouldconsiderwhethertheyshouldresigntheir
membership in Parliament. I told them that if they did not wish to resign, they should come to myofficeatLayardsRoad,
Colombo 5, on the following day so that steps necessary could be taken to initiate and conduct a formal inquiry.

32. I state that thereafter the petitioner and his brother Ramamoorthy divorced themselves completely fromtheparty.From
3rd May onwards, the two brothers did not attend the party's office,gaveseveralinterviewstothemediaincludinga
television interview making serious allegations against me, stating that I was dictatorial, stating that they weregoingto
function as 'Independents' in Parliament supporting those who helped them in their legal problems, alleging thatanyonewho
opposed me would, be eliminated, suggesting that their own lives were in danger because of me, that theEPDPhadakiller
squad which was opposed by them, claiming that they were opposed to the party policy ofseekingaTamil-speakingregiment
and that they would state without fear that I was a racist even more cruel than Prabakaran. I annex hereto marked 1 R17 to1
R27 newspapers relating to the said matters and translations 1 R25-A and 1R27-A.Acassetterecordingofthetelevision
interview is also available for examination by Your Lordships Court.

33. When it was realised that the petitioner and his brother would not attend the party office for the purposeofaformal
inquiry being commenced, I asked the members of the Inquiring Committee to submit a written report. That report,dated20th
May, 1997, was submitted for consideration to the members of the Central Committee who were available. Ofthe21surviving
members, there were (excluding the petitioner) 15 members who considered the report and the conductofthepetitionerand
his brother and unanimously decided that he should be expelled from the party. I was then directed by theCentralCommittee
to inform the petitioner and his brother Ramamoorthy that they had been expelled from the party. I didthisbytheletter
dated 6th June, 1997, which has been marked as P8. I herewith annex 5 affidavitsfromtheCentralCommitteeMembersand
marked as 1 R28-B, 1 R28-C, 1 R28-D and 1 R28-E.

Mr. Wikremanayake submitted that if this court accepts the position as set out above, it follows thatthepetitionerswere
afforded an opportunity of being heardbutthattheyhadrefusedtoavailthemselvesofthatopportunity.Inthe
circumstances, there was nothing more that the 1st respondent could have done and there was sufficientcompliancewiththe
audi alteram partem principle.

However, it is not disputed that no charge-sheet was served on the petitioners. No explanation inregardtotheiralleged
acts of misconduct was called for. As rightly submitted by Mr. Abeykoon, if the 1st respondent wasinapositiontohave
sent the petitioners P8 and P9, what was the difficulty in servingacharge-sheetandcallingforanexplanation?The
question of holding a formal inquiry would arise only thereafter. A request to the petitioners on the telephone tocomefor
a formal inquiry is totally inadequate. It was far too serious a matter to be dealt with in that informal manner. The fact,
that the petitioners were duly elected Members of Parliament and that they were the elected representatives of the peopleis
a very relevant consideration. What is more, the consequences of expulsion from the EPDP and theterminationofmembership
of the Independent Group No. 2 are, as complete as could be imagined, to use the words of the Privy Council in Durayappahv.
Fernando, 69 NLR 265.(1) As observed by Sharvananda, J. (as he then was) in Amaradasa v. The Land Reform Commission,79NLR
(volume 1) 505 at 544(2) It is of the utmost importance to uphold the right and indeed the duty of the courts to ensurethat
powers are not exercised in breach or the principles of natural justice when the exercise ofsuchpowersimpingesonthe
basic rights of citizens.

I now turn to the second ground of expulsion from the EPDP referred to above. Mr. Wikremanayake strongly urged that thereis
no dispute in regard to the disparaging remarks made by the petitioners concerning the 1st respondent andtheEPDPinthe
newspapers and in an interview to the MTV. The petitioners, however, have not admittedallthenewsitemsattributedto
them. In any event, the authenticity, the correctness and the accuracy of the news items canbeascertained,andfindings
reached thereon, only at a fair inquiry after adequate notice of the allegations has been given to the petitioners. H. W.R.
Wade in his work on Administrative Law (6th edition at page 535) . emphasizes the basic principle that fairprocedurecomes
first and it is only after hearing both sides that the merits can be properly considered. In this connection, it iswellto
bear in mind the dangers expressed by Megarry, J. in John v. Rees (1970 ch. 345 at 402)(3). As everybody who has anythingto
do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehowwerenot of
unanswerable charges which, in the event, were completely answeredof inexplicable conduct whichwasfullyexplained of
fixed and unalterable determinations that, by discussion, suffered a change. Having regard to these principles, Iholdthat
there has been a failure to afford a fair opportunity to the petitioners to correct orexplainorcontradictthealleged
disparaging remarks concerning the 1st respondent and the EPDP.

Apart from P8, the other document which is challenged in these proceedings is P9. The contents of P9 read as follows:
121, Park Road,

Colombo 6,

You have been duly informed that the EPDP of which you were member has now expelled you from the party.
You contested the Parliamentary Election as a candidate of the Independent Group No. 2 of the ElectoralDistrictofJaffna
of which I was the leader. You would also recall that you gave an under takingatthetimeofsubmissionofnomination
papers that you will conduct yourself in accordance with all the stipulations in a pledge signedbyyou.Acopyofthat
pledge is annexed hereto for your easy reference.

In view of the fact that you have been expelled from the EPDP and have violated the pledge given byyou,yourconducthas
left me with no alternative but to terminate your membership of the Independent Group No. 2oftheElectoralDistrictof
In view of the consequences that must necessarily flow, I am forwarding a copy of this lettertotheSecretary-Generalof
Parliament for necessary action.
Yours truly,
K. N. Doulgas Devananda, MP.,

Secretary-General, EPDP

Leader, Independent Group No. 2

Electoral District of Jaffna.
Copy to:1. Secretary-General of Parliament
2. Commissioner of Elections.
On a reading of P9 it would appear that there were two reasons for the termination of membershipoftheIndependentGroup
No. 2. The first is the expulsion from the EPDP andthesecondreasonistheviolationofthepledgegivenbythe
petitioners. I have already considered the validity of the expulsion from the EPDP. I agree with,thesubmissionofMr.
Wikremanayake that just as much as the party constitution is an agreement or contract betweenpersonsforthepurposeof
association, the pledge is a contract between the parties intended to ensure conformity with party policies. Fernando,
Dissanayake v. Kaleel (1993) 2 SLR 135 at 182(4) exhaustively reviewed the cases and stated: Although the rights inquestion
arose essentially from contract, a fair hearing was apreconditiontodeprivationofrightsortotheimpositionof
penalties and disabilities being an implied term of such contract. In the words of Willes, J. in Cooper v.WandsworthBoard
of Works (1863) 14 CB (NS) 180(5) . . . the rule is of universal application, and founded upontheplainestprinciplesof
justice. I accordingly hold that the termination of membership of the petitioners of theIndependentGroupNo.2onthe
ground of alleged violation of the pledge is subject to the audi alteram partem rule, and there has been a failure tocomply
with it.

Mr. Wikremanayake relied strongly on the judgment of Kulatunga, J.inDissanayake'scase(supra)-ThelearnedJudge,
however, in the course of his judgment clearly stated: The right of a MP to relief under Article99(13)(a)isalegal
right and forms part of his constitutional rights as a MP. If his complaint is that he has been expelled from themembership
of his party in breach of the rules of natural justice, he will ordinarily be entitled to relief andthiscourtmaynot
determine such expulsion to be valid unless there are overwhelming reasons warranting such decision. Such decisionwouldbe
competent only in the most exceptional circumstances permitted by law and in furtherance of thepublicgoodtheneedfor
which should be beyond doubt. at page 234 (The emphasis is mine). In considering the campaign carried on bythepetitioners
in that case between 28.08.91 and 6.9.91 Kulatunga, J. took the view that it amounted to a threattostablegovernmentin
the country, a campaign that was likely to confuse or inflame the public mind against the Head of the State,thegovernment
and the party in power. The learned Judge added . . . this case involves the interests of a party which has beenvotedinto
power by the electors and above all the interests of the public who are often the victims of such indisciplinedcontroversy.
No such weighty considerations are present in the applications before us. I accordingly hold that strict compliance withthe
audi alteram partem rule was a precondition to a valid expulsion from the party (EPDP) as wellastheterminationofthe
membership of the Independent Group No. 2 of the electoral district of Jaffna. This the respondents have failed to do.

For the reasons set out above, I determine that both P8 and P9 are of no force or avail in law and that they are invalid.
In all the circumstances, I make no order as to costs of these proceedings.

WIJETUNGA, J. - I agree.


Expulsion from party and termination of membership declared invalid.s

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