Legal Services and Laws of Sri Lanka


SLR-2002 Vol.1-P26

SLR - 2002 Vol.1, Page No - 26

BASHEER SEGU DAWOOD

v.

FERIAL ASHRAFF AND OTHERS
SUPREME COURT

AMERASINGHE, J.,

WADUGODAPITIYA, J. AND

GUNASEKERA, J.

SC SPECIAL (E) NO. 2/2001

17, 18 AND 19 SEPTEMBER, 2001
Constitutional Law - Expulsion of a 'member1 of recognized political party who is a Member of Parliament - Articles99(13)
(a) and 99A of the Constitution - Who may expel the 'member1 where the recognized political party is a politicalalliance-
Validity of the expulsion.

The petitioner was, at the material time, a member of the Sri Lanka Muslim Congress (The SLMC) which party together withthe
Sri Lanka Progressive Front formed "a new political alliance" called the National Unity Alliance (NUA)byaMemorandumof
Understanding (MoU) dated 10th June, 1999. The NUA contested Parliamentary elections in October, 2000.

The petitioner's name appeared on the nomination paper of the NUA at the aforesaid election for the BatticaloaDistrictbut
he was presumably not eligible to be declared elected on the basis of preferences received by him at the poll. However, ona
request dated 13th October, 2000, made by the 4th respondent (the Secretary-General of the SLMC) made intermsoftheMoU
between the SLMC and the NUA dated 13th August, 2000, the NUA nominated him as its Nationalist List member under Article99A
of the Constitution and the 9th respondent (the Commissioner of Elections) declared the petitioner as a Member ofParliament
under that Article.

By her letter dated 3rd July, 2001, the 1st respondent (the Leader of the NUA) informed the petitioner that hewasexpelled
from the membership of the NUA with immediate effect and that asthepetitionerrepresentedtheNUAinParliamenthis
explusion will be communicated to the10threspondent(Secretary-GeneralofParliament)andthe9threspondent(the
Commissioner of Elections).

Held:
The petitioner, not being a member of the NUA could not be expelled fromit.Therefore,thepurportedexpulsionofthe
petitioner was invalid in terms of Article 99 (13) (a) of the Constitution.
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Per Amerasinghe, J.

"... as far as the petitioner is concerned he was and remains a member of the political party, namely the SLMC, and that
party alone, although he was a candidate nominated by the NUA for election to Parliament in terms of Article 99A of the
Constitution."

APPLICATION in terms of Article 99 (13) (a) of the Constitution challenging expulsion from the National Unity Alliance.

K. N. Choksy, PC with D. S. Wijesinghe, PC, Ronald Perera, A. M. Faaiz and U. Abdul Najeem for petitioner.
Nihal Jayamanne, PC with Arnold Nanayakkara and Uditha Collure for 1st respondent.
Sanjeewa Jayawardena with Sanjeewa Senasinghe, Mariam Mansoor and Shadiya Zanoon for the 8th respondent.
Romesh de Silva, PC with Harsha Amarasekera for 4th respondent.
Ikram Mohamed, PC with Ian Fernando, Shyama Fernando, Thissath Wijegunawardena, M. S. A. Wadood and Lai Munasinghe for 5th
and 6th respondents.
Parakrama Karunaratne with Abdul Kalaam for 7th and 11th respondents.
Wijedasa Rajapakse, PC with Nizam Kariappar, and Kuwera de Soyza for 2nd and 8th respondents.
K. Sripavan, Deputy Solicitor-General with Rajiv Gunathilake, State Counsel for 9th and 10th respondents.
Cur. adv. vult.
September 28, 2001.
AMERASINGHE, J.
By notification published in Government Gazette No. 1154/7 dated 17th October, 2000, the Commissioner of Elections, acting
under Article 99 (A) of the Constitution, declared certain persons as 'elected'
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Members of Parliament. The petitioner was one of the persons so declared 'elected' as a Member of Parliament.

By her letter dated the 3rd of July, 2001, (P19) the 1st respondent wrote to the petitioner stating, inter alia, that hehad
acted in a manner that brought disrespect and disrepute to the National Unity Alliance and itsLeader.The1strespondent
further stated that "exercising the powers vested in me as the Leader of the NUA with the objective of safeguarding thebest
interests of the party, I hereby dismiss you from the Membership of the National Unity Alliance and expel you fromthesaid
Party with immediate effect and as such you have ceased to be a Member of the National Unity Alliance".The1strespondent
concludes the letter dated the 3rd of July, 2001, with the following words: "As you represent the National Unity Alliancein
the Parliament, your dismissal from the Membership of the NUA and your expulsion from the Party will be communicatedtothe
Secretary-General of Parliament and the Commissioner of Elections."

The petitioner, by his petition dated the 30th of July, 2001, praysthat this Court, inter alia, (1) declarethepurported
expulsion of the petitioner from the National Unity Alliance by P19 to be invalid and of no legal force oreffect and(2)
set aside the decision of the 1st respondent contained in P19and (3) declarethatthepetitionercontinuestobeand
remains a Member of Parliament.

The application of the petitioner for the aforementioned reliefs is made under and in terms of Article 99 (13) (a) statesas
follows:

"where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member ofrecognizedpoliticalparty
or independent group on whose nomination paper (hereinafterreferredtoasthe"relevantnominationpaper")hisname
appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of aperiod
of one month from the date of his ceasing to be such member:
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Provided that, in the case of the expulsion of a Member of Parliament his seat shallnotbecomevacantifpriortothe
expiration of the said period of one month he applies to the Supreme Court by petition inwriting,andtheSupremeCourt
upon such application determines that such expulsion was invalid. Such petition shall be inquired intobythreeJudgesof
the Supreme Court who shall make their determination within two months of the filing ofsuchpetition.WheretheSupreme
Court determines that the expulsion was vaild the vacancy shall occur from the date of such determination".

The petitioner came to be a Member of Parliament in the following way:
The Secretary-General of the Sri Lanka Muslim Congress (SLMC), on the 13th of October, 2000, wrote totheSecretary-General
of National Unity Alliance (NUA) stating as follows: (P25B).

"This is further to our discussion on the need to recommend a name to the Commissioner of Elections for the National Listof
the National Unity Alliance.
Please take action to recommend the name of Mr. Basheer Segu Dawood, the National Propaganda Secretary of thePartytothe
Commissioner of Elections to be appointed as a MP on the National List of the NUA.
This communication is sent to you in terms of the Memorandum of Understanding signed between the SLMC and the NUAdated31.
08. 2000."
The Secretary-General of the NUA on the 13th of October, 2000, accordingly wrote to the Commissioner of Elections (P25C).

30

The National Unity Alliance was, in the words of the Memorandum of Understanding dated the 10th of June, 1999(P4),"anew
political alliance", that brought together two recognized political parties for the purposes of elections,namely,theSri
Lanka Muslim Congress and the Sri Lanka Progressive Front. The National Unity Alliance itself became arecognizedpolitical
party for the purposes of elections within the meaning of section 7 of the Parliamentary Elections Act, No. 1 of 1981.

The Constitution of the National Unity Alliance states (P5a) that the members of the National Unity Alliance are -
(1) The Sri Lanka Muslim Congress, and
(2) The Sri Lanka Progressive Front.
However, the Constitution of the NUA provides that the politburo of the NUA "by a unanimous decision may decide to admitany
other political party into the alliance".
The structure known as the NUA had constituent parts consisting of political parties, but it did not accommodateindividuals
as members.

The petitioner contends that neither he, nor for that matter any other individual, was a memberoftheNUA,fortheNUA
Constitution did not provide for any members other than political parties. Individuals could not become members oftheNUA.
The petitioner contends that inasmuch as he was not a member of the NUA, the 1strespondent'spurportedexpulsionofthe
petitioner from the NUA was a nullity. The petitioner further contends that in any event the purported expulsion wasinvalid
in terms of the Constitution of the National Unity Alliance (P5a).
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Mr. Jayamanne, PC and Mr. Rajapakse, PC contended that, if as the petitioner maintains, he was not a member of the NUA,then
he is precluded from invoking the jurisdiction of this Court under and in terms of Article 99 (13) (a) oftheConstitution,
for a person invoking the jurisdiction of this Court under that Article shouldhaveceasedbyresignation,expulsionor
otherwise to be a member of a recognized political party ... on whose nomination paper. . . his name appeared at the timeof
his becoming such Member of Parliament ..." The submission of learned counsel, attractive though it appears atfirstsight,
is in my view flawed, for it rests on the erroneous assumption that a Member of Parliament must be a member ofarecognized
political party.

Where there is a purported expulsion of a Member of Parliament such Member is entitled, under Article99(13)(a)ofthe
Constitution, to invoke the jurisdiction of this Court to determine whether such expulsion was valid. In order to invokethe
jurisdiction of this Court, a petitioner is not required to establish that he was a member of arecognizedpoliticalparty
on whose nomination paper his name appeared at the time of becoming such Member of Parliament. Members of Parliament whoare
'elected' are candidates whose namesappearonthenominationpapersofrecognizedpoliticalparties.Thereisno
requirement that such candidates shall also be members of suchparties.Thepetitioner,aswehaveseenwasdeclared
'elected' under and in terms of Article 99A of the Constitution. There is no requirement in that Article for a nomineeofa
recognized political party, to fill a seat due to such political party underanapportionment,tobeamemberofthat
political party. Neither the provisions of the Constitution nor the provisions of the Parliamentary Elections Actrequirea
person to be a member of a political party to be eligible to be nominated as acandidateforelectiontoParliament.Of
course, political parties and alliances of political parties mayhavememberswhocanbeexpelled.Infact,thenew
Constitution of the NUA does provide for "Founder Members", namely, the SLMC and the SLPF and individuals.But,asfaras
the petitioner is concerned he was and remains a member of one political party,namely,theSLMC,andthatpartyalone
although he was a candidate nominated by the NUA for election to Parliament in terms of Article 99A of the Constitution.
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As we have seen, the first respondent in her letter (P19) has stated that as the petitioner represents the NUA inParliament
his "dismissal from membership of the NUA" {sic) and his "expulsion from the Party" will be communicatedtotheSecretary-
General of Parliament and the Commissioner of Elections.

Whatever the petitioner or anyone else may have thought about the matter, the petitioner'sseatinParliamentwouldhave
automatically fallen vacant upon expiration of one month from the purported expulsionfromthepartyandtheSecretary-
General of Parliament would have informed the Commissioner of Elections who would then have taken steps to fill thevacancy.
(See Article 99 (13) (a) of the Constitution and section 64 (1) of the Parliamentary Elections Act, No. 1 of 1981).However,
the Constitution states that in the case of expulsion of a Member of Parliament his seat would not become vacant if priorto
the expiration of one month from the expulsion heappliestotheSupremeCourtandtheCourtuponsuchapplication
determines that such expulsion was invalid.

The petitioner, not being a member of the NUA could not be expelled from it. I, therefore, hold that the purportedexpulsion
of the petitioner, Mr. Basheer Segu Dawood, was invalid since it was null and void and of noforceoravailinlaw the
purported expulsion by the first respondent is of no value or importance: It amounts to nothing and shall be treated asnon-
existent for the purposes of Article 99 (13) (a) of the Constitution.

The 1st respondent shall pay the petitioner a sum of Rs. 25,000 as costs.

WADUGODAPITIYA, J. - I agree.

GUNASEKERA, J. - I agree.

Expulsion of the petitioner from the party determined invalid.


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