Legal Services and Laws of Sri Lanka

SLR-1999 Vol.2-P248

SLR - 1999 Vol.2, Page No - 248











MARCH 24, 1999.

Expulsion of a Member of an Independent Group - Article 99 (13) (a) of the Constitution - Validity of the expulsion - Non-co-
operation with the Group - Failure to explain alleged misconduct - Wilful failure to attend disciplinary inquiry -Exparte
decision to expel the Member - Natural justice.

The petitioners were Members of Parliament representing Independent Group No. 2 which contested the1994electionforthe
Jaffna District. In all there were 09 Members of the Group who had been selected by the Eelam People's Democratic Party(the
10th respondent). In June, 1997, the petitioner in this application and thepetitionerintheconnectedSCspecial(E)
application No. 3/99 were expelled from the group which expulsion was declared invalid on an applicationmadetoCourtin
terms of Article 99 (13) (a) of the Constitution. Thereafter, the 1strespondent(theLeaderoftheGroup)summoneda
meeting of Members of Parliament of the Group for 9.9.97, inter cilia to call fortheexplanationofthepetitionersin
respect of vilifications made against the Group and its leader. But, the petitioner replied thathewouldnotattendit.
Following this event the petitioner adopted a persistent and wilfulpolicyofnon-co-operationwiththeGroupandits
activities and failed to attend Group meetings. He also failed without excuse to speak in debates in Parliamentasrequired
by the Group. The 1st respondent called for the petitioner's explanation pursuant to adecisionoftheGroup.Byletter
dated 23.3.98, the 1st respondent called for the petitioner's explanation for the allegation of misconduct setouttherein.
The petitioner failed to give an explanation.

He was given extensions of time and every possible opportunity to explain. But, he did not respond. Hence, on adecisionof
the Group a Committee of three was appointed to hold a disciplinary inquiry into the conduct of the petitioner.

The petitioner informed the Committee that the meetings of the group were mala fide and that he will not attendmeetingsof
the Committee of Inquiry. The Committee gave the petitioner a further date but the petitioner didnotattend.Instead,he
replied threatening to take disciplinary action against the Group. As suchtheCommitteeheldanexparteinquiryand
recommended to the Group immediate disciplinary action. The Members decidedtoexpelthepetitionerwhichdecisionwas
communicated to him by letter dated 31.1.99 setting out the grounds for the expulsion. By aletterofthesamedatethe
petitioner in the connected SC Special (E) application No. 3199 was also expelled.

Held :
1. The ruling of the Court in 1997 in favour of the petitioner in respect of the June, 1997, expulsion was not a bartothe
impunged disciplinary proceeding. The previous ruling was on the ground that there was a breach of theaudialterampartem
rule (a procedural flaw). It did not hold that the charges were unfounded. In any event theearlierexpulsionwasonthe
basis of alleged misconduct before June, 1997. The second expulsion was based on subsequent misconduct alleged to havetaken
place in September and December, 1997.
2. The fact that two of the members of the Committee of Inquiry were also members of the first Committee of Inquirydidnot
justify the allegation of bias for the reason that at the later inquiry the charges were different.Inanyevent,byhis
failure to take the objection before the Committee the petitioner had waived the plea of bias.
3. Even though there was no formal charge-sheetframedbytheCommittee,theletterdated23.3.98addressedtothe
petitioner gave him adequate notice of the substances of the allegations of which he was found guilty.
Per Fernando, J.

"Natural justice in this respect is concerned with the substance, and not with mere form: . . . what is required is thatthe
substance of the allegation be communicated with sufficient precision and clarity to enable the person charged toknowwhat
he has to meet."
4. The petitioner had no right to have been served with a copy of the report of the Committee beforeitwasconsideredby
the Group. In the context of his conduct and persistent refusal to attend the inquiry or even to attendtheGroupmeetings
at which the said report was tabled and discussed, it is frivolous and vexatious to claim inproceedingsbeforetheCourt
that he was denied access to the report before it was considered by the Group.

Per Fernando, J.
'It is not unreasonable to conclude that the petitionerhadtotallyrepudiatedhisobligationstotheGroup,thereby
manifesting an intention no longer to function as a part of the Group. Although the petitioner did not expressly resignfrom
the Group, resignation might well have been implied from his conduct.'

Case referred to :
1. Jayatilleke v. Kaleel (1994) 1 Sri LR 319, 345.
APPLICATION under and in terms of Article 99 (13) (a) of the Constitution challenging expulsion from membership of a
recognized Independent Group.
D. W. Abeyakoon, PC with E. Thambiah for the petitioner.
E. D. Wickremanayake with U. Abdul Najeem for the 1st-08th and 10th respondents.
9th, 11th and 12th respondents absent and unrepresented.

March 30, 1999.
Thirteen candidates were nominated by the "Independent Group No. 2" (the Group), which contested the1994GeneralElection
for the Jaffna District. Ten of these candidates hadbeenselectedbytheEelamPeople'sDemocraticParty(the10th
respondent), and three by the United National Party. On the votes polled, the Group became entitled to nine seatsandbased
on the preferences obtained, nine nominees of the 10th respondent - the petitioner,the1strespondent,the3rdto8th
respondents, and another person - were declared elected as Members of Parliament for the Jaffna District. Thatninthperson
resigned shortly thereafter, and - on the basis of the preferences obtained - was succeeded by the petitioner's brother,the
9th respondent (who is the petitioner in SC Special (E) 3/99). We wereinformedthatthethreenomineesoftheUnited
National Party were not made respondents because they had resigned from the Group.
Both petitioners were expelled from the Group by letters dated 31.1.99. They filed applications on 26.2.99 challengingtheir
expulsion. The Chief Justice nominated this bench to hear those applications. When we took up this applicationforhearing,
counsel agreed that the decision in respect of this application would apply to SC Special (E) No. 3/99 as well.
These applications are a sequel to two similar applications filed by thesamepetitionersinrespectoftheirprevious
expulsion in June, 1997 (SC Special (E) Nos. 1 & 2/97, SCM 21.8.97). There it was held that no charge-sheet hadbeenserved
on the petitioners, and no explanation called for in regard totheactsofmisconductallegedagainstthem andthat
although a request had been made to them on the telephone - to come for a "formal inquiry" - that was totally inadequate.
Immediately thereafter, the 1st respondent as Leader of the Group, summoned a meeting of the MembersofParliamentofthe
Group for 9.9.97, to be held in the Parliamentary Complex. One of the items on the agenda wastocallforanexplanation
from the petitioners "in respect of vilifications made,andbeingmade,against[theGroup]anditsLeader"bythe
petitioners. The petitioner replied on 9.9.97 that the meeting had been summoned with theintentionofexpellinghimand
stated that he would not attend. According to the 1st respondent, the Parliamentary Group metregularlythereafterinthe
room allocated for the use of the Group in the Parliamentnotices of meeting were sent to all Members, together with acopy
of the minutes of the previous meetingcopies of all the notices and minutes (from September, 1997, to February, 1999)were
annexed. Eight such meetings were held in 1997, but the petitioner did not attend any, although on manyofthosedateshe
did attend sittings of Parliament, and gave no excuse for not attending.

Mr. D. W. Abeyakoon, PC, relied on the petitioner's. statement in his counter-affidavit, that he "only received someofthe
notices and minutes of the meetings", but not all. What the petitioner had received was entirely withinhisknowledge,and
the onus was on him to identify those without ambiguity - and that he could easily havedonesimplybyreferencetothe
dates of the documents produced by the 1st respondent, without even troubling to annex copies of what he hadreceived.That
omission becomes all the more significant because twice - in letters dated 23.3.98 and 28.12.98-the1strespondenthad
asserted that notices and minutes of all meetings had been sent to the petitionerbut the petitioner failed to deny thatin
his replies dated 4.4.98 and 4.1.97.
There can be no doubt, therefore, that the petitioner did receive notices and minutes of all the meetings of the Group.

The notices and the minutes of those meetings show that many matters relevant to the Group were being discussed.Turningto
the second issue relevant to this case, on 10.11.97 the Group decided that Members should speak duringtheCommitteeStage
of the Budget debate, and to the minutes of that meeting was annexed a list of Members, thesubjects,thedates,andthe
periods of time allocated for them to speak. The petitioner was scheduled to speak on 25.11.97 on the votes oftheMinistry
of Forestry and Environment and on 2.12.97 on the votes of the Ministry of Science and Technology, for just fiveminuteson
each occasion. A copy of the minutes of the meeting of10.11.97wasforwardedtothepetitionerwithanoticedated
18.11.97. It is common ground that the petitioner did not speak on those two occasions, but gave neitheranexcusenoran
explanation. However, in his counter-affidavit the petitioner alleged that he had beenallocatedsubjectswhichwerenot
familiar to him in order to embarrass him, but did not claim that he was unaware that he had been allocatedtimetospeak.
Accordingly, it must be assumed that the decision had been communicated to him in time.
The question of disciplinary action against the petitioner was discussed at several meetingsalthough the Group decided
over and over again that disciplinary action should be taken and/or that his written explanation should be called for, no
steps were taken until March, 1998. By letter dated 23.3.98 the 1st respondent called for his written explanation:
"From 9th September, 1997, I had been summoning our Parliamentary Group meetings before theParliamentmeetseverymonth.
For these meetings, the notices were sent along with the agenda to all of our Group Members, including you.

It is observed that you had not only failed to attend any of these Parliamentary Group meetings up to now,butalsofailed
to give any valid reasons for your absence from these meetings. Further, you had also failed to carry outthedecisionsof
the Parliamentary Group, specifically with regard to the time allocation for thespeechestobemadeonbehalfofthe
Independent Group No. 2 during the last Budget Debate in the Parliament.
Under these circumstances, the Parliamentary Group of the Independent Group No. 2 has come to the conclusion that youappear
to be wilfully refusing to co-operate with our Group in its activities and failing to comply andrespectthedecisionsof
our Group.
Therefore, the Parliamentary Group has unanimously decided and authorisedmetocallforyourexplanationsastowhy
disciplinary action should not be taken against you.
Please note that your explanations in writing should reach me on or before 6th April, 1998, to enable me to forward thesame
to our next Parliamentary Group meeting for its consideration and appropriate action. If you fail to respond to thisletter,
I shall assume that you have no explanations to offer and shall refer the matter to our Parliamentary Groupforappropriate

The minutes show that the matter was considered thereafter atseveralmeetings.Thus,on5.5.98theGroupnotedthat
although no explanation had been received, "as the postal service in the country was disrupted, itwasreasonabletogive
more time to both to send their replies". The minutes of the meeting of 23.6.98 recorded that thepetitioner'sreplydated
4.4.98 had been received only on 28.5.98, and noted that he had only said that "a reply will be sent soon''. That replymade
no complaint about the contents of the letter of 23.3.98 or the procedure. The matter came upagainatseveralsubsequent
meetings, and on 6.11.98 it was decided to obtain legal advice. A copy of theminutesofthatmeetingwassenttothe
petitioner with a notice dated 9.11.98.

At the meeting held on 9.12.98 the Group decided to appoint a Committee of Inquiry (the Committee)consistingofthe4th,
5th and 8th respondentsto call for an oral explanation from the petitioner before the Committee andthattheCommittee
should meet and hold the inquiry on 28.12.98 at 10.00 am in Parliament. The 1strespondentwasauthorisedtocommunicate
this decision to the petitioner, and to request him to appear before the Committee to give his oral explanation.Acopyof
the minutes of that meeting was sent to the petitioner with a notice dated 14.12.98and by letterdated17.12.98the1st
respondent told the petitioner:

"By your letter dated 4.4.1998 you had written . . . that a reply will be sent very soon. But, so far youhavenotsenta
reply to my letter.
The above matter was considered at the Meeting of the Independent Group 2 on 9.12.1998. To bring this matter to anendvery
quickly, it was decided at that Meeting to appoint a Committee of Inquiry in order to obtain verbal explanation from you.In
accordance with that decision a Committee of Inquiry was appointed with [the 4th respondent as President and the 5th and6th
respondents] as Members. Further, it was decided that the Inquiry should be conducted at the Office of the IndependentGroup
2 situated in the Parliament." [translation supplied by the petitioner]

The petitioner's reply dated 22.12.98 was that:
". . . Since I have not replied to your letters calling for explanation as such no letterwassentfortheMeetingthat
decided to appoint an Inquiry Committee for which I was to attend . . .
. . . I am aware that Meetings were conducted to take actions against me and not for any other goodintentions.Iconsider
that all actions that are being taken against me, after the Supreme Court decision are with a narrowview,Hence,Iwould
like to inform you again that nothing good will come out of myattendingtheseMeetings."[translationsuppliedbythe

The petitioner did not appear before the Committee on 28.12.98, and the 1st respondent again wrote to him the same day:
" . . . Not only invitations were sent to you for the Meetings that took place this year, eventheMinutesweresent.If
necessary copies of these could be sent to you.
. . . Therefore, to give you another ultimatum, it has been decided to conduct and complete the Inquiryontheforthcoming
5.1.1999. By this, I kindly request you to be present at the Office of the Independent Group 2 situated in the Parliamentat
10.30 am. The Inquiry Committee with [the 4th respondent as president and the5thand6threspondents]asMemberswill
conduct the Inquiry." [translation supplied by the petitioner]
The petitioner replied on 4.1.99 that:
" . . . I consider that you are constantly troubling me for you have a grudge againstmesinceyoulostintheSupreme
Court. I have stressed over and over again that types of Meetings are only to take action against me and not withanyother
good intention.
. . . Knowing that more than 400 are buried in the Chemmani cemetery, has the Jaffna Independent Group takenanyactionso
far in any of the Meetings?

There are 795 Remand Prisoners detained in Kalutara without Inquiries for several years. After knowing this has the
Independent Group 2 taken any action? . . .
If there is no suitable reply for questions as above I and many other Jaffna District Members jointly proposed to appointan
Inquiry Committee against you is for you to know, who is to blame and take action againstwhom."[translationsuppliedby
the petitioner]
He did not appear before the Committee even on 5. 1. 99.
The Committee was, therefore, compelled to proceed ex parte. It foundtheallegationsproved,andrecommendedimmediate
disciplinary action. The Group considered the Report of the Committee on 18.1.99. The Members agreed withthefindingsand
unanimously decided that the two petitioners should be expelled. The 1st respondent conveyed that decision to thepetitioner
by letter dated 31.1.99, together with the reasons therefor:

"(1) You have wilfully absented yourself from the eight consecutive meetings of the Parliamentary Group referred tointhis
(2) You have wilfully not complied with the decisions of the Parliamentary Group, specifically bynotspeakingduringthe
1997 Budget Debate in Parliament.
(3) You have wilfully desisted from giving written explanations to the points raised in my letter of 23.3.1998.
(4) You have wilfully kept away from the inquiry into your conduct by a three-member Inquiry Committee, whichwasscheduled
for 28.12.1998, and then postponed for 5.1.1999 due to your absence on the first date.
(5) Your above-mentioned actions dearly imply that you have wilfully contravened declarations (1), (3) and (5) of the Oath
of the Independent Group 2 of the Jaffna Electoral District, which Oath signed on 5.7.1994 had been declared by the Supreme
Court of Sri Lanka as the Constitution of the Independent Group 2.'
The findings of the Committee were substantially to the same effect.
Mr. Abeyakoon made several submissions in support of his contention that the expulsion was bad in law.First,hecontended
that immediately after this Court ruled in favour of the petitionerinrespectoftheJune,1997,expulsion,the1st
respondent took steps directed at his expulsion, commencing with the meeting of 9.9.97. However, thatcannotbeconsidered
as unlawful or improper because this Court did not hold that the charges in respect of which the petitionerhadfirstbeen
expelled were unfounded: only that there had been a procedural flaw, namely, a breach of the audi alteram partemrule.That
decision was, therefore, not a bar to disciplinary proceedings in respect of the very samecharges.Inanyevent,itis
quite clear that those charges necessarily related to misconduct alleged to have occurred before June, 1997, and thecharges
resulting in the second expulsion were plainly based on subsequent misconduct alleged to have taken placeinSeptemberand
December, 1997.

Mr. Abeyakoon's second argument was that the findings of the Committee were vitiated by bias, because twomembers(the4th
and the 8th respondents) had also been members of the first Committee of Inquiry. Had the Committee being inquiring intothe
very same charges different consideration might have arisen. Here, plainly, the charges were different, andthatparticular
objection - of having formed a view and thus prejudged the matters in issue - cannot be taken. Further, theGroupconsisted
of only nine Members. Excluding the two petitioners, and the 1st respondent whom thepetitionershadcriticisedasbeing
"dictatorial", "systematically hostile", etc., there were only six members to choose from. IdoubtwhethertheGroupwas
obliged to choose the three who had not functioned on the first Committee. If that principle has always tobeapplied,the
consequence would be that there would be no one qualified to inquire if ever a third set- of charges arose.
There is another consideration which is a complete answer to Mr. Abeyakoon's objection. As Wade observes:

"The Court normally insists that the objection shall be taken as soon as the party prejudiced knows the factswhichentitle
him to object. If, after he or his advisers, knowofthedisqualification,theylettheproceedingscontinuewithout
protest, they are held to have waived their objection and the determination cannot be challenged." (AdministrativeLaw,5th
ed, page 430).
The petitioner was aware of the composition of the Committee not later than 22.12.98 when he replied to the1strespondents
letter of 17.12.98the minutes of the meeting of 9.12.98 would probably have reached him even before.Eveninhisletter
dated 4.1.99 he did not take the objection. Thus, he let the Committee continue its proceedings without protest, andthereby
waived this plea of bias.
Third, it was contended that the letter dated 23.3.98 was not a charge-sheetthat no proper charge-sheet was ever servedon
the petitionerand that in any event it was the Committee, and not the 1st respondent, which should have served thecharge-
sheet. Natural justice in this respect is concernedwiththesubstance,andnotwithmereform:seeJayatillekev.
Kaleel(1). What is required is that the substance of the allegation be communicated, with sufficientprecisionandclarity
to enable the person charged to know what he has to meet. The requirements of the law relating to criminalprocedureasto
indictments and charges do not apply.

It is quite clear from the letter dated 23.3.98 that the petitioner was being charged withhavingfailedtoattendevery
single meeting held in 1997, without giving valid reasons, and with having failed to carry outthedecisionoftheGroup
"specifically" in regard to speaking in Parliament during the 1997 Budget debate. The reference made, in ageneralway,to
failing "to carry out the decisions of the Group', would not have justified (in the absence of particulars)afindingthat
there had been non-compliance with any other decision. However, there was no decision on that basis. Thatletteralsomade
it clear that in those circumstances the petitioner appeared to be wilfully refusing to co-operatewiththeGroupinits
activities, and that disciplinary action was contemplated. I hold that the petitioner had adequate noticeofthesubstance
of the allegations of which he was later found guilty.

The submission that the Committee itself should have served thecharge-sheetisquiteunfounded.Almostinvariablythe
practice in disciplinary proceedings is that an inquiring officer or a committee of inquiry is appointed only after a charge-
sheet has been served,anexplanationreceived,andsuchexplanationisfoundtobeunsatisfactory.Thereisno
justification at all for the submission that it is only the Committee of Inquiry which could prepare andservethecharge-
sheet. Such a procedure would have been appropriate for an inquisitorial body.

Mr. Abeyakoon then submitted that the Committee should have sent a copy of its report to the petitioner, and calledforhis
observations, before that report was considered by the Group. That is a request which the petitioner didnotmakeevenon
4.1.99, when he virtually defied the 1st respondent and the Group-making allegations against theGroupandthreateningto
appoint a Committee of Inquiry to probe them. I hold that the petitioner had no such right. Furthermore, thepetitionerhad
the opportunity of perusing the Committee's report and making representations to the Committee and/ortothewholeGroup.
That report was tabled at the Group meeting on 7.1.99, anddiscussionwaspostponedfor18.1.99 noticewasgivenon
14.12.98 of the first of those meetings, and on 11.1.99 of the secondthe second notice expressly stated thatthequestion
of disciplinary action against the petitioner would be considered on 18.1.99. Nevertheless, the petitioner refused toattend
either of those meetings. Having failed for several months tosubmitanexplanation,havingrefusedtoparticipatein
meetings, and to appear before the Committee, and having failed to avail himself of theopportunityofcommentingonthe
report at the relevant Group meetings, it is frivolous and vexatious now to claim in these proceedingsthathewasdenied
access to the report before it was considered by the Group.

Mr. Abeyakoon's fifth contention was that other Members of the Group who had absented themselves from meetings,orhadnot
spoken in Parliament, were not subjected to disciplinary proceedings, and that there hadthusbeendiscriminationagainst
the petitioner. Those matters should have been raised in his explanation, before the Committee, and at meetings of theGroup
both before and after the Committee submitted its report. They cannot be entertained for the first time inthisCourt,for
that would be to take over functions of the Committee.

Finally, it was claimed that the Committee had found the petitioner guilty of matters with which hehadnotbeencharged.
Mr. Abeyakoon conceded that the Committee was justified in holding that the petitioner had wilfully refused to replytothe
letter dated 23.3.98, and to appear before the Committee on 28.12.98and5.1.99.Asforthetwospecificcharges,he
conceded that the Committee was justified, on the available material, in concluding that the petitioner had failed toattend
all eight Group meetings held in 1977 and that this was non-co-operationand that he had deliberately failed toparticipate
in the Budget debate, in breach of party discipline. While he did submit that the petitioner had a reason for this - thathe
was not familiar with the subject - he acknowledged that the petitioner had failed to communicatethisexplanationtothe
Committee, as he should have. It is not for this Court to entertain pleas which the petitionerdeliberatelyrefrainedfrom
submitting to the Committee.

Mr. Abeyakoon strenuously urged that the Committee had found the petitioner guilty - without a specificchargehavingbeen
framed - of acting contrary to clauses 1, 3, and 5 of the "pledge" which the EPDPnomineesoftheindependentGrouphad
signed in July, 1994, as a condition of receiving nomination. The three relevant clauses were:
1. to act according to the decision of the Secretary-General of the EPDP who is the Leader of the Group
3. within the Group, not to act contrary to the policies of the EPDP, and upon a breach to abide bythedecisiontakenby
the Leader of the Group and Secretary-General of the EPDP
5. if elected to Parliament, to restrict his Parliamentary activities tothedecisionoftheLeaderoftheGroupand
Secretary General of the EPDP.
The effect of this "pledge" was considered in SC Special Nos. (E) 1 & 2/97:
". . . just as much as the party constitution is an agreement or contract between persons forthepurposeofassociation,
the "pledge" is a contract between the parties intended to ensure conformity with party politics."

Mr. Abeyakoon admitted that the Group has no constitution or rules. The pledge must therefore, beregardedassettingout
the basis on which the EPDP members of the Group decided to associate as a Group. Mr. Abeyakoonstrenuouslycontendedthat
the pledge gave the 1st respondent dictatorial powers, and that the petitionerwasforcedtosignitinordertoget

It would seem that the Committee did not find the petitioner guilty of a breach of the "pledge" as adistinctandseparate
ground: the expulsion letter shows that the Committee only found that his "above-mentioned actions" imply a contraventionof
the "pledge". With or without the "pledge", a prolonged refusal to attend Group meetings, without prior excuse orsubsequent
explanation, and a refusal to perform an important function of a Member of Parliament,wouldunquestionablybeaserious
breach of discipline of any political party or group. When to that is added a defiant refusal to attend aninquiryintended
to ascertain his explanation, it is not unreasonable to conclude that the petitioner had totally repudiatedhisobligations
to the Group, thereby manifesting an intention no longer to function as a part of the Group. Although the petitioner didnot
expressly resign from the Group, resignation might well have been implied from his conduct.
In my view, the petitioner cannot question the validity or propriety of the pledge in these proceedings.TheGroup,almost
from the inception, was substantially a part of the EPDP, although in relation to Parliament it had a separateidentity.In
the circumstances, a decision that the objectives, policies and Parliamentary activities of the Groupshouldcoincidewith
those of the EPDP was not unreasonable. Whether those were to be determined by the entire membership, or acommittee,ora
single individual, was primarily a matter for the members. The above three clauses of the pledgereflectanacceptanceby
the Group that it would be the Leader of the Group, who is also the Secretary-General of the EPDP, who would communicateand
even determine them. If the petitioner was later unable to agree with the "pledge", he should have raisedtheissuewithin
the Group and before the Committee of Inquiry. Even assuming that he might be entitled to question the 'pledge"outsidethe
structures of the Group, he cannot do so in these proceedings for the first time.
For the above reasons, I determine that the expulsion of the petitioner was lawful and valid. I awardthe1stto8thand
10th respondents a sum of Rs. 15,000 as costs, payable by the petitioner.

GUNASEKERA, J. - I agree.

Expulsion of the petitioners upheld.

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