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GAMINI DISSANAYAKE (PETITIONER in SC 4/91) V. MCM KALEEL and OTHERS

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GAMINI DISSANAYAKE (PETITIONER in SC 4/91) V. MCM KALEEL and OTHERS sc Gamini Dissanayake v. M. C. M. Kaleel and Others 135 GAMINI DISSANAYAKE (PETITIONER IN SC 4/91) v. M. C. M. KALEEL AND OTHERS (Note : Similar applications in Cases Bearing No. 5/91, No. 6/91, No. 7/91, No. 8/91 and 9/91, No. 10/91, No. 11/91 were heard together and disposed of in one judgment). SUPREME COURT. FERNANDO, J. KULATUNGA, J. AND WADUGODAPITIYA, J. S.C. (Special). No. 4 - 11/91. OCTOBER 31 AND NOVEMBER 1, 4, 6, 7, 8, 11, 12 AND 13, 1991. Article 99 (13) (a) of the Constitution - Notice of resolution to impeach the President - Speaker's notification to President of entertaining resolution [Article 38 (2) (a) and (b)] - Vote of confidence in President by Cabinet Members - Inconsistency of expulsion with the provisions of the Constitution and Statute Law - Jurisdiction of Working Committee of U.N.P. - Position of an MP vis-a-vis his Party - Signing notice of resolution to remove the President and agitation for constitutional changes - Failure to initiate prior internal discussion - Causing insult and injury to the President - Deceiving the Cabinet - Breach of rules of natural justice - Audi alteram partem - Bias - Mala tides. Eight Members of the United National Party who were also members of Parliament singly filed eight petitions bearing numbers SC 4 - 11/91 challenging their expulsion from the Party. The respective petitioners in applications No. SC 5/91 and No. SC 8/91 were Ministers of Cabinet rank in the UNP government shortly before their expulsion. The petitioner in application No. SC 9/91 and the petitioner in application No. SC 10/91 were a State Minister and Project Minister respectively in ttie UNP government shortly before their expulsion. The petitioners have filed their respective applications under and in terms of Article 99 (13) (a) of the Constitution. The expulsion of these eight members of the United National Party if held to be valid will result in their being deprived of their seats in Parliament The eight applications were heard together. The eight petitioners were alleged to have participated in steps being taken in late August 1991 under Article 38 (1) (e) read with Article 38 (2) for the removal of the President who was also the leader of the United National Party. Notice of a resolution in terms of Article 38 (2) (a) signed by more than the half the whole number of members of Parliament was stated to have been handed in to the Speaker who on 28 136 S ri Lanka Law Reports [1993/ 2 S ri L.R. August 1991 informed the President in writing declaring that he had entertained the said resolution in terms of Article 38 (2) (b) and drawing attention to proviso (c) to Article 70 (1). On 08 October 1991 however the Speaker announced in Parliament that having inquired into the matter he was of the view that the notice of resolution did not have the required number of valid signatures and accordingly could not be proceeded with. The Speaker's letter of 28 August 1991 was received by the President when a Cabinet Meeting at which the petitioners in SC 5/91 and SC 8/91 were present, was in progress. A vote of confidence in the President was called for and those present including the petitioners in SC 5/91 and SC 8/91 unanimously expressed their support for the President by a show of hands. However, it later became known that they supported the notice and they resigned from the Cabinet on 30 August 1991. On 30 August 1991 the President prorogued Parliament until 24 September 1991. The resolution in question alleged that the President was guilty of intentional violation of the Constitution, treason, bribery, misconduct or corruption including the abuse of the powers of his office, offences involving moral turpitude, permanent incapacity to discharge the functions of his office by reason of mental or physicial infirmity, undermining the powers of Parliament and of Cabinet Ministers, giving direct orders to Secretaries by-passing their Ministers, engaging Secretaries to obtain confidential reports on their Ministers, endangering the security of the State by arming the Liberation Tigers of Tamil Eelam (LTTE), sending off the Indian Peace Keeping Force (IPKF) without considering military aspects, resorting to unlawful telephone tapping (including telephones of Ministers), engaging in wasteful expenditure, including Gam Udawa Celebrations and establishing a one man dictatorship. Between 30 August 1991 and 08 September 1991 the petitioners launched a public campaign reiterating the principal allegations contained in the notice of resolution as well as other criticisms of the President and appealing for the abolition of the Executive Presidential system and the restoration of Parliamentary Democracy making the Executive directly responsible to Parliament. This campaign also revealed that opposition members had been associated with the petitioner in regard to the notice of resolution and that the petitioners desired the widest possible publicity for their views, it was claimed that 47 members of the UNP had signed the notice of resolution. On 03 September 1991, 116 members of the Government Parliamentary Group presented to the Speaker a writing dated 30 August 1991 stating that they do not support the resolution and those of them who had signed it were withdrawing their signatures and consent and they claimed that they had signed through mistake or because of misrepresentation. sc Gamini Dissanayake v. M. C. M. Kaleel and Others 137 On 05 September 1991 the petitioners anticipating disciplinary action by the Party for expulsion instituted actions in the District Court of Colombo for declarations and injunctions against steps being taken for their expulsion. On 06 September 1991 they were refused relief. Before they could go to the Court of appeal, the Disciplinary Committee of the Party met the same evening and recommended expulsion. A meeting of the working Committee followed immediately thereafter, and a resolution for the expulsion of all eight petitioners was passed. On 07 September 1991 the 2500 strong National Executive Committee (NEC) unanimously endorsed that decision. By letters dated 09 September 1991 the petitioners were informed that they were expelled from the party with effect from 06 September 1991 by a decision of the Working Committee. No reference was made to NEC's endorsement. The petitioners continued their public campaign through meetings and rallies countrywide, press conferences and publicity in the media. The petitioners filed the present applications and their principal challenge was on the following grounds : (a) Absence of jurisdiction in the Working Committee. (b) Inconsistency with the provisions of the Constitution and Statute Law. (c) Breach of the rules of natural justice particularly the audi alteram partem rule. (d) Bias and mala fides. Held : The resolution of the NEC (passed on 19 April 1991) by using the phrase " full powers to carry out the responsibilities and functions of the National Executive Council " manifests an intention to delegate all powers, duties and functions including the responsibility and the function in relation to disciplinary matters. The Party Constitution does not treat the Working Committee as a subordinate body to be entrusted only with routine matters of daily administration. Rule 8 (3) (m) of the U.N.P. Constitution expressly empowered the National Executive Committee (NEC) to vest all or any of its powers and duties whether expressly enumerated or not on the Working Committee. The delegation in question does not purport to be permanent or irrevocable, and thus there is no denudation of its powers by the Executive Committee. Its size the difficulty of having frequent meetings, and the complexity of the decision - making process in a large body are matters which the Executive Committee could legitimately have taken into account in delegating its powers to a smaller Working Committee selected from among its own members. The Executive Committee was authorised to and did validly vest in or delegate to the Working Committee its disciplinary powers under Rule 8 (3) (m). The Working Committee had jurisdiction to take disciplinary action against the petitioners. 138 Sri Lanka Law Reports [1993] 2 S ri LR . Our Constitution confers primacy to the political party as against the individual M.P. The party carries the mandate of the electors and in turn gives a mandate to the M.P. The exercise of the rights of the petitioners qua MP's is subordinate to the requirements of party discipline and their freedom to agitate matters in public is constrained by reason of their obligations to the party which they have freely undertaken to honour. Issues in regard to leadership and the system of government are matters of prime importance to the party and dissenting views should have been the subject of internal discussion before being ventilated outside party circles. The internal discussion procedure was mandatory even if the internal decision might not be binding. A member is not reduced to the position of a mere cog in the party machine. Some of his constitutional functions are essentially discretionary and quasi - judicial, some even judicial. Thus article 4 (c) enables Parliament to exercise the judicial power of the people in regard to parliamentary privilege. Any member of Parliament was entitled to sign the notice of resolution in the exercise of his independent judgment and discretion. Signing a notice intended to be presented, and in fact presented to Parliament in respect of a matter within its province is a proceeding in Parliament. Freedom of speech (and thought, conscience and expression) clearly embraces the people's right to know, the wide dissemination of information and opinions, the public discussion of all matters of public concern and criticism, however strongly worded, and even if foolish and without moderation, of public measures and government action, all this, of course, by peaceful means and without incitement to violence.
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