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

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Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... The last of these is in no sense a "duty" of the Executive Committee, but is an independent provision. There can be no dispute that the Executive Committee has the "duty" to enforce the Party Constitution and relevant rules, and the "duty" as well as the "power" to take disciplinary action against members, including expulsion, suspension and other punishments. Learned President's Counsel for the Petitioner contends that the disciplinary jurisdiction of the Executive Committee cannot be exercised by the Working Committee, for several reasons 1. The Executive Committee is a large, elected body, representative of various sections of the Party ; the Working Committee is a small body, appointed by the Leader of the Party from among the members of the Executive Committee, and therefore not truly representative of the Party. The plenary power of Administration was vested in the Executive Committee, including punitive powers of expulsion. The Rules as a whole do not manifest an intention that these powers may be transferred or delegated to any other body. 2. Rule 8 (3) (m) appears to authorise the Executive Committee to " vest " powers and functions in the Working Committee. It makes no mention of the procedure to be followed in regard to such " vesting." However, " vesting " more than " delegation ", and amounts to an abdication, renunciation divesting of a power by the Executive Committee ; if such a " vesting " does occur there will be a Constitutional change in that a power previously vested in the Executive Committee will thereafter be vested in the Working Committee. Accordingly, such a " vesting " can only be effected by means of a Constitutional amendment ; not by a mere resolution of the Executive Committee. 3. In any event, even if Rule 8 (3) (m) permits some " vesting " of powers by resolution, this would not extend to any of the powers and duties expressly enumerated in Rule 8 (3), but only to incidental matters and routine matters of day-to-day administration. 4. Even if expressly enumerated powers and duties can be " vested ", yet they cannot be transferred in toto, so as to denude the Executive Committee of all its powers. 5. In any event the resolution proposed at a meeting of the Executive Committee held on 19.4.91 - " It is hereby proposed that the Working Committee of the Party be vested with full powers to carry out the responsibilities and functions of the National Executive Committee of the Party " - is vague, and is ineffective to clothe the Working Committee with disciplinary powers. Further, the minutes of the meeting do not record that the resolution was passed. 6. The Court should adopt a strict construction, presuming, firstly, that the Party Constitution does not, in general, allow " vesting " or delegation, in the absence of clear and express provision ; and, secondly, that, even if there was such provision, disciplinary powers of this nature were not intended to be transferred. The minutes of the Executive Committee meeting of 19.4.91 are undoubtedly defective. Two resolutions are mentioned, but it is not stated that they were adopted. Had there been no other material, I would have held that the Executive Committee had not vested its disciplinary powers in the Working Committee. However, the Petitioners were ex officio members of the Executive Committee; they would have had notice of that meeting, and may have been present ; they could certainly have ascertained what. transpired. It was averred in the petitions that only the Executive Committee has disciplinary powers ; the Respondents replied annexing the minutes of the meeting of 19.4.91 whereby, they said, " the powers and functions of the National Executive Committee were by resolution vested in the Working Committee under [Rule 8 (3) (m)] ". The Petitioners obtained leave to reply ; however, even in their counter-affidavits they did not claim that the resolution had not been passed ; instead they merely questioned the effect of that resolution, by asserting that it did not enable the Working Committee to exercise the disciplinary powers vested in the Executive Committee, for the reason that it purported to effect a Constitutional amendment. If the Petitioners were seriously contending that the resolution had only been proposed, but not passed, that allegation should have been made clearly, specifically and directly. I am satisfied that the resolution had been passed at the meeting, although the minutes are defective. I also hold that the resolution is not vague. Although the opening words of Rule 8 (3) refer to " duties ", it proceeds to enumerate a host of powers, duties and functions. The resolution, by using the phrase "full powers to carry out the responsibilities and functions ", manifests an intention to delegate al! powers, duties and functions, including the " responsibility " and the "function " referred to in Rule 8 (3) (a) in relation to disciplinary matters. 14 of 56 4/20/2011 1:18 PM 157 158
Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... It is clear that discretionary powers, whether conferred by statute or by agreement, must in general be exercised by the designated repositary of those powers. " An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable The maxim delegatus non potest delegare is sometimes invoked as if it embodied some general principle that made it legally impossible for statutory authority to be delegated. In reality there is no such principle ; and the maxim plays no real part in the decision of cases, though it is sometimes used as a convenient label. Its proper home is in the law of agency, where it expresses the point that a principal who must accept liability for the acts of his agent need not accept it for the acts of his agents agent ; but even here there are wide exceptions. In the case of statutory powers the important question is whether, on a true construction of the Act, it is intended that a power conferred upon A may be exercised on A's authority by B. The maxim merely indicates that this is not normally allowable. For this purpose no distinction need be drawn between delegation and agency. Whichever term is employed, the question of the true intent of the Act remains ". (Wade, Administrative Law, 5th Edition pp 319-320) This is not an instance where from its very nature, the power to delegate can be inferred. However, Rule 8 (3) (m) appears to permit the Executive Committee to authorise the Working Committee to exercise powers conferred on the former. Learned Presidents Counsel's contentions depend almost entirely on the meaning of the word " vest ": which he seeks to equate to " abdicate ", " renounce " or " alienate ", permanently and irrevocably. On being asked the ordinary meaning of the word, in the context of power and authority, his reply was that it meant " clothe ". In law, where a grantor " clothes " another with power or authority, there is no implication of a denudation of the grantor's powers, nor of irrevocability or permanency. That is also the plain meaning of the word, in every day usage and in literature, as evidenced in Shakespeare's immortal lines : " Man, proud man, dressed in a little brief authority ". To dress a grantee with authority, or to clothe, or vest, him with power, does not imply an irrevocable and permanent renunciation of his powers by the grantor, " Vest " is thus akin to " delegate ", rather than . to " abdicate ", " Vest " is used in that sense in the Constitution (e.g. in Articles 118 (g) and 138 (2)). Parliament is authorised by Article 4 (c) directly to exercise the judicial power of the people in regard to matters relating to the privileges, immunities and powers of Parliament and its Members. If Parliament were, by law passed in terms of Article 138 (2), to " vest " in the Court of Appeal power and jurisdiction in respect of the immunities of Members of Parliament, this would be an exercise of legislative power permitted by, and consistent with, the Constitution. Neither such exercise, nor the result of such exercise, would be inconsistent with the Constitution. Therefore no question of amending the Constitution can arise, and an ordinary law would suffice. In particular, such vesting would not involve an abdication or alienation of legislative power in violation of Article 76. In the same way, the Executive Committee is authorised directly to exercise disciplinary powers ; if by resolution the Executive Committee " vests " such powers in the Working Committee, that is permitted by, and consistent with Rule 8 (3) (m). Neither the act, nor the result, of such vesting is inconsistent with the Party Constitution ; hence no question of amending the Party Constitution arises, and a resolution is sufficient. A somewhat similar problem arose in Wickramabahu v. Herath, (1) where it was held that " If in respect of a fundamental right recognised by Article 13 (1) and (2), an Emergency regulation imposes a restriction which is permitted by Article 15 (7), such regulation does not over-ride, suspend or amend any provision of the Constitution ; it is a restriction permitted by the Constitution, and is both intra vires and consonant with the Constitution, and therefore does not 'over-ride' the Constitution." I hold that the exercise of a power to " vest " permitted by Rule 8 (3) (m) does not over-ride or conflict with the Rules, but is consistent with the Rules, and requires no amendment of the Rules. The Petitioners further contend that Rule 8 (3) (m) does not expressly permit the transfer of disciplinary powers, and that,. even if it did, both the nature of those powers and the nature of the two Committees justify a presumption that the Rules did not contemplate any delegation. Undoubtedly, that Rule does not specifically authorise delegation of disciplinary powers : it might have said " all or any of the powers and functions ", or " including those specified in paragraph (a) ", and the matter would then have been unarguable. But in my view such a provision was unnecessary. Rule 8 (3) (m) as it stands makes express provision covering the vesting of disciplinary powers 15 of 56 4/20/2011 1:18 PM 159 160 161
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