Gamini Dissanayake (Petitio... - Human Rights Commission of Sri ...

More documents

Recommendations

Info

Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... Article 38 (2) constitutes a ground for expulsion ", and the lack of prior internal discussion was not mentioned. The Respondents replied thus in each case "31. ...........if the Petitioner had any complaint or allegations against the Leader of the Party or desired to advocate any change in the policy of the Party regarding the Executive Presidential system, he was obliged and bound to first raise the same within the Organisation of the Party and abide by the decision of the Party in regard thereto. The Petitioner at no stage raised within the Party or at any meeting of the Government Parliamentary Group...... any complaint against the Leader of the Party or against the Party's policy of an Executive Presidential System.' ' 32. (a) The Petitioner nevertheless was a signatory to a Notice of Resolution under Article 38 (2) ............. for the removal of the Party Leader from the Office of President of Sri Lanka. The said Notice of Resolution contained serious allegations of a grave nature ............. It also alleged mental infirmity against the Leader of the Party: (b) Subscription to the said Notice of Resolution containing the said allegations by a member of the Party and of the Government Party Group carries with it by necessary implication that the President is a person unfit to be the Leader of the United National Party." "33. The Petitioner had signed the said Notice of Resolution together with inter alia several Members of the Opposition in. Parliament." "34.(a) ............the admitted signing of the said Notice of Resolution by the Petitioner was an act of betrayal of the Party Leadership and membership and was a violation of the Parry Constitution and Party responsibility and discipline, justifying the expulsion of the Petitioner from the Party. (b) .......... the Petitioner had no right to subscribe to such a Notice of Resolution independently of his obligations as a Member of the Party and of the Government Parliamentary Group. (c) In any event, the Petitioner was in violation of the Party Constitution, discipline and responsibility in doing so without first raising the matter within the Party or the Government Parliamentary Group." These averments appear to place the act of signing the notice in the forefront of the case against the Petitioners ; the failure to raise the matter internally was - as indicated by the words " in any event " - an additional, and subsidiary, charge. This impression is reinforced by the Respondents' explanation for not taking similar action against other Party Members who signed the notice: "24. (a) ......... all remaining 116 members of the Government Parliamentary Group signed documents dated 30th August 1991 and 2nd September 1991 disassociating them selves with the Notice of Resolution under Article 38 (2) of the Constitution and expressing their opposition to such Resolution. These documents were presented in person by the said 116 members to the Honourable 154 Speaker on 3rd September 1991. Accordingly no disciplinary action was taken against any other member who may have signed the said Notice of Resolution. At the meeting of the Working Committee held on 15th October 1991 the Committee required the Disciplinary Committee to consider and make recommendations in regard to disciplinary action if any against three members of the Government Parliamentary Group who have recently associated themselves in the political activities of the Petitioner and the other seven members." The stress is on disciplinary action for " signing "; not on the absence of prior internal discussion. These objections were filed on 23.10.91. The Petitioners were required to file their counter-affidavits by 28.10.91, after giving notice to the Respondents by 27.10.91. While denying paragraphs 24 (a), and 31 to 34, they averred that the Party was not irrevocably committed to the Executive Presidential system, and that " this question was not raised [internally] for the reason that there did not exist a degree of freedom necessary to raise questions which would involve a curtailment of Presidential power "; this they did not elaborate. It is thus likely that there was some confusion in the minds of members of the Working Committee. The minutes of the Working Committee show that the 2nd Respondent, as General Secretary, made a fair and comprehensive report in respect of the proceedings and recommendations of the Disciplinary Committee ; with, however, that same element of uncertainty. He referred succinctly to the District Court proceedings and order, the 12 of 56 4/20/2011 1:18 PM 153
Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... Petitioners' admissions in regard to signing, and the very serious nature of the accusations in the notice ; to the Petitioners' lawyers' assertion that Members of Parliament had a Constitutional right to sign such a resolution ; to two Petitioners having misled the Cabinet; and to the public campaign against the Presidential system. The minutes record that " he further stated " that the Petitioners had not previously raised these matters internally ; he then stressed that this was a breach of discipline. It was not indicated that signing the notice was not a distinct charge. The findings or views of the Disciplinary Committee are also not specific on this point ; but it " was of the view that no inquiry was necessary because the fact of signing of the impeachment Resolution was admitted." The President " stated that inasmuch as the Notice of Resolution...... was directed against him, he did not wish to participate in this discussion " ; earlier he had not taken part in the discussion and recommendations of the Disciplinary Committee " in view of the Impeachment Resolution." Learned President's Counsel for the Respondents was himself a member of the Working Committee and participated in the proceedings of 6.9.91. On that day too his view must have been that the gravamen of the charge was the lack of prior internal discussions. That opinion may have been shared by others. But that position did not clearly emerge in the Respondents' objections and the 2nd Respondent's supporting counter-affidavit. It is therefore reasonable to infer that the 2nd respondent as well as other members of both Committees did think that one of the main charges was the act of signing the notice. Had attention being focussed on this matter, it might have been determined, after discussion, that the issue was not the fact of signing. But that did not happen. It appears to me that the better view of the expulsion resolution is that one of the grounds for expulsion was the fact of signing. That gives rise to serious questions. Could some members have taken the view that the resolution contained very serious accusations, and that a Party member who signed it was guilty of serious misconduct, warranting expulsion ? If so, could they have properly formed such a view where the text of the notice was not available ? Had those members been told that was not the charge, and that the real allegation was the failure to resort to internal procedures, would they have considered it appropriate to impose a lesser punishment - such as a brief suspension to be reviewed after the resolution was taken up in Parliament ? This means however that one does not really know whether the Petitioners were expelled for signing the resolution, or for the procedural lapse. Upon consideration of the resolution and the pleadings, however, I am compelled to treat the expulsion as involving five distinct charges. 4. CAN THE WORKING COMMITTEE EXPEL A MEMBER ? Rule 8 of the Party Constitution establishes a National Executive Committee consisting of ex officio members (such as Members of Parliament) and members elected by the (annual) Party Convention ; It presently has over 2,500 members. It is required to meet at least once in every six months. It is " the administrative authority of the Party, subject to the directions and control of the Party Convention, and its decisions shall be final, subject to review by the Party Convention." Rule 8 (3) provides that " its duties shall include the following." Having enumerated various duties, such as conferring with the Parliamentary Party, convening Party conventions, proposing amendments to the Party Constitution, organising election funds, adjudicating on disputes between Party organisations, appointing Nomination Boards and sub-Committees for elections, and appointing an auditor and certain officers, Rule 8 (3) sets out three matters relevant for present purposes - (a) To enforce the Constitution, Standing Orders and Rules, and the Code of Conduct of the Party, and to take any action it deems necessary for purpose, whether by way of disaffiliation or cancellation of an organisation or expulsion or suspension of any individual member or office bearer from office or otherwise. The National Executive Committee shall have power to take disciplinary action against any member, Balamandalaya, Organisation or Association in a manner suitable in the circumstances of each case and mete out any punishment thereof [sic]. Any such action shall be reported to the next Annual Convention of the Party. (b) To see that all its officers and members conform to the Constitution and Standing Orders of the Party. (c) Leader of the Party shall appoint a Working Committee from the National Executive Committee consisting of himself, Deputy Leader and all other office bearers and any other members not exceeding fifty (50). The Working Committee shall have the authority to exercise the powers and functions vested in it by the National Executive Committee." 13 of 56 4/20/2011 1:18 PM 155 156
Page 1 and 2: Gamini Dissanayake (Petitioner In S
Page 11: Gamini Dissanayake (Petitioner In S

Gamini Dissanayake (Petitio... - Human Rights Commission of Sri ...

Create successful ePaper yourself

Delete template?

Save as template?