IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF

In the matter of an application under and in terms of section 63 (!) of the Provincial Council Elections Act No.02 of 1988 as amended.

Herath Ralalage Jayatilleke Podi Nilame, “Hemagiri”, Siyambalapitiya, Kegalle. Petitioner CA Application (Expulsion) No. 64/ 2010

- Vs –

1. , “Sirikotha”, No. 400, Kotte Road, Pitakotte, Sri Jayawardenapura.

2. Ranil Wickrremasinghe, Leader,

1 United National Party, “Sirikotha”, No. 400, Kotte Road, Pitakotte, Sri Jayawardenapura

3. , General Secretary, United National Party, “Sirikotha”, No. 400, Kotte Road, Pitakotte, Sri Jayawardenapura.

4. Lalith Dodamkotuwa, Secretary, Sabaragamuwa Provincial Council, Council Secretariat, Nawa Nagaraya, Ratnapura.

5. Dayananda Dissanayake, Commissioner of Elections, Elections Secretariat, Sarana Mawatha, Rajagiriya.

2 Respondents

BEFORE : S. SRISKANDARAJAH J. Ms. ROHINIE MARASINGHE J. D. S. C. LECAMWASAM J.

COUNSEL : M. U. M. Ali Sabry with Rasika Dissanayake and Shamin Fernando for the Petitioner

Ronald Perera with Nalin Amarajeewa for the 1st and 2nd respondents

Daya Pelpola for the 3rd respondent

A Gnanathasan, DSG with Anula Jayatilleke SC for the 4th and 5th respondents

ARGUED ON : 24/03/2010

WRITTEN SUBMISSIONS FILED ON : 31/ 03/ 2010

DECIDED ON : 25/ 05/ 2010

D. S. C. Lecamwasam J.

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This is an application under section 63(1) of the provincial Councils Election Act No.2 of 1988 filed by the petitioner, a member of Sabaragamuwa Provincial Council challenging his expulsion by the 1st respondent, United National Party.

Petitioner in his petition stated that he entered the political arena approximately 22 years ago and has served in different capacities in the parliament as well as in the Sabaragamuwa Provincial Council. In September 2008 he contested the Provincial Council election as a candidate of and on the nomination paper of the UNP and was returned as a member of the Sabaragamuwa Provincial Council. According to the petition he has served the party with the utmost dedication, commitment and unreserved loyalty. When the 1st respondent party decided to support the candidature of General instead of fielding a candidate of the party, petitioner says that he was shocked and perturbed. He had come to know of the proposed course of action only through publicity given by the media and neither the 1st respondent nor the working committee informed him about the new line of action.

Having come to know about the proposed course of action, in principle he opposed if not expressed his criticism and aired his disapproval within the party. Thereafter as he was marginalized and excluded from party activities he had finally decided to extend his support to the incumbent president and his government which prompted the 1st respondent United National Party to issue P5. By P5 dated 26th December 2009 the 3rd respondent,

4 General Secretary of the UNP has called for the petitioner to give an explanation on or before 2nd January 2010 with regard to two allegations contained therein, viz

1. Stating that he would support the candidature of President Mahinda Rajapakse at the Presidential Election to be held on 26th January 2010 and actively supporting his election campaign and/or

2. Meeting His Excellency the President Mahinda Rajapakse at the President’s house in Kandy and obtaining membership of the Sri Lanka Freedom Party.

P5 further stated that by his conduct the petitioner had violated the party’s working committee directive issued on 26th November 2009 under article 3.3(c) of the party constitution to support the candidature of General Sarath Fonseka at the forthcoming presidential election and that wide publicity had been given to his conduct by the media. According to the petitioner although P5 is dated 26th December 2009 it had in fact been dispatched by registered post on 28th December 2009. On receipt of P5, on 1st January 2010 he had sent a letter by registered post (P6) requesting one month’s time to reply to P5.

In the meantime he had received a letter dated 05th January 2010 (P7) signed by the 3rd respondent informing him that the working committee of the UNP decided to expel him from the party. In coming to this conclusion

5 the working committee had considered a report of the party Disciplinary Committee and the fact that the petitioner had not made any response to the letter dated 26th December 2009. P7 had been copied to the 4th respondent, Secretary Sabaragamuwa Provincial Council and the 5th respondent, the Commissioner of Elections. The petitioner asserts that he was not summoned before any disciplinary committee and the purported expulsion is illegal, unreasonable and contrary to all norms and rules of natural Justice. Hence the petitioner had invoked the Jurisdiction of this court in terms of section 63(1) of the Provincial Council Election Act No.2 of 1988 to have the said decision contained in P7 declared invalid and for the other reliefs prayed in the petition.

However 1-3 respondents in their objections state that the petitioner by his conduct acted in defiance of the decisions taken at the annual convention and by the executive committee of the party and rejected the principles and policies of the party and endorsed or adopted the policies and principles of the rival party UPFA. According to the 1-3 respondents the petitioner had been critical of the party leadership for over a period of time, brought the party and its leadership to disrepute and the above said acts of the petitioner demanded urgent and prompt action being taken in the interest of the party. They further say that the petitioner had maliciously instituted this action in order to safeguard his position in the provincial council and not in the interests of the party or the electors who have voted him into power and moves for a dismissal of the action.

6 As stated at the outset, by P5 dated 26th December 2009 the 3rd respondent called for explanations from the petitioner before 2nd January 2010. petitioner by his letter dated 01st January 2010 (P6) asked for time to respond but 1-3 respondents in their objections maintained absolute silence on the issue of receipt of P6. P6 is a letter sent under registered cover therefore one can safely presume that the respondents are in receipt of P6. Nevertheless by P7 the petitioner was expelled from the party and there is a reference in P7 to the effect that a disciplinary committee report too was considered in coming to the conclusions reflected in P7. However the petitioner contends in paragraph 33(b) of the petition that he was never summoned before a disciplinary committee. The 1-3 respondents too have not placed any proof before this court of the fact that the petitioner being summoned before a Disciplinary Committee and further dealing with paragraph 33(b) of the petition, 1-3 respondents have not given a plausible answer in paragraph 11 of their objections.

The learned counsel for the 1st -3rd respondents submitted to court that as the misconduct of the petitioner warranted speedy and prompt actions the said respondents were under a duty to act speedily in the interests of the party. In Glynn Vs. Keele University (1971) 2 A11 ER 89. The vice chancellor found an undergraduate guilty of being seen unclothed in the campus and excluded him from residence on the campus without affording a hearing. The court held that he had been denied natural Justice but refused relief. Counsel for the 1-3 respondents on the strength of the above decision

7 argues that in the instant case too due to the obviousness of the facts there is no need for a hearing.

Although the learned counsel argued that there is no need for a hearing, the facts of this case reveal that it was the 3rd respondent who initially set the process in motion by issuing P5. If the respondents did not believe that there was a need for a hearing 3rd respondent need not have issued P5. By issuing P5 the respondents have implicitly admitted that a hearing is a prerequisite before an expulsion. Therefore 1-3 respondents cannot at this point of time say that a hearing is not warranted, by going back on their implicit actions.

It was held in R Vs. Wilson (1835) 2 adon E 817 “It is implied by natural Justice…..that no one ought to suffer any prejudice….without having first an opportunity of defending himself”. The rule of natural Justice was not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate…. Per Kelly CB in Wood Vs Wood (1874) LR9X190. There are numerous judicial decisions from overseas and from our own Supreme Court stressing the need to follow principles of Natural Justice. In Abdul Majeed Vs Sri Lanka Muslim Congress and others her ladyship Justice Shirani Bandaranayake held “ In a situation where serious penalties are imposed culminating in expulsions of petitioners, it would be a pre condition to afford them a fair hearing with adequate time to present an effective answer”.

8 Wade & Forsyth op. cit. p 526 point out that “in principle it is vital that the procedure and the merits should be kept strictly apart since otherwise the merits may be pre judged unfairly.” Therefore I would first deal with the procedural aspect.

When 3rd respondent forwarded P5 to the petitioner and asked for explanations in regard to the allegations contained in P5 the 3rd respondent set the principles of Natural Justice in motion. By P5 dated 26th December 2009 the 3rd respondent required the petitioner to reply by 2nd January 2010. According to the petitioner P5 dated 26th December 2009 was received only on 30th December 2009, which fact even the 1-3 respondents do not deny or challenge. The period from 30th December to 2nd January in actuality only affords two entire days to form a cohesive explanation when the date of receipt and dead line for explanations are excluded.

As per the directions of P5 explanations must reach the 3rd respondent on or before 2nd January by registered post. Being well aware of the social realities of the country it is a well known fact that for a letter to reach by 2nd January it must be registered from Kegalle at least by 31st December. If we take a position more in favour of the respondents, letter must dispatch from Kegalle at least by 1st of January. Whatever the position we adopt there cannot be more than one or two clear dates. The counsel for the respondents submitted that the questions contain in P5 are not complex questions petitioner could have given simple answers of either yes or no and submitted further that it does not require even half an hour to

9 answer the questions in P5. I fully agree with the contention of the learned counsel to the extent that the questions involved are not complex questions or no ‘weighty considerations’ are involved. But in a situation where disastrous consequences are in store, culminating in expulsion of the petitioner it is nothing but fair to afford him a hearing with adequate time to present an effective answer as observed by Her Ladyship Justice Shirani Bandaranayake in Abdul Majeed’s case (supra).

In Sarath Amunugama and Others V. Karu Jayasuriya, Chairman, United National Party and Others (2000 1 SLR 172) Supreme Court held that “…..as a matter of law Dr. Amunugama was entitled to sufficient time to have the opportunity of presenting an effective answer or defence”

On receipt of P5 the petitioner by P6 moved for further time of one month to send a reply. Although a day or two is insufficient to formulate an effective answer, under the circumstances that prevailed at the time a period of one month is too excessive and not at all reasonable from the perspective of the respondents. In Abdul Majeed’s case petitioners had only about 24 hours to answer the charges. There were Twenty charges and petitioners moved for an extension of time by two weeks only. In Dr Amunugama’s case though complex issues were involved he wanted certain documents to be furnished and a minimum period of one week from the date documents are furnished. Considering all the attendant circumstances and especially in view of the Presidential Election fixed for 26th January 2010, petitioner’s request for a period of one month is excessive and the

10 request of one month gives rise to a presumption of mala fides on the part of the petitioner. Nevertheless the time granted by P5 is extremely inadequate and therefore on that ground alone the petitioner should succeed. In the light of these findings there is no need to further deal with other matters that have been brought up.

Perusal of paragraph 20 of the petition proves beyond reasonable doubt that the petitioner has left the 1st respondents party and joined the rival group. No doubt, under the circumstances 1-3 respondents are compelled to take remedial steps to protect the interest of the 1st respondent party lest petitioner will continue to ‘run with the hare and hunt with the hounds’ but the respondents cannot overlook the principles of Natural Justice.

As 1st-3rd respondents have failed to afford a fair hearing with adequate time to present an effective answer or defence it is crystal clear that the 1st- 3rd respondents have not followed the rules of Natural Justice and I accordingly hold that strict compliance with the principles of Natural Justice is a pre condition to a valid expulsion from the 1s respondent party. For the reasons set out above I determine that P7 has no force or avail in law and that it is invalid. I make no order as to costs.

This order will not preclude the respondents from taking fresh action against the petitioner according to law.

11 Judge of the Court of Appeal

S. SRISKANDARAJAH, J. I Agree.

Judge of the Court of Appeal

Ms. ROHINIE MARASINGHE J. I Agree.

Judge of the Court of Appeal

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