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

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