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 ... ".............express provision is provision the applicability of which does not arise by inference....... The fact that the language used is wide and comprehensive and covers many points other than the one immediately under discussion does not make it possible to say that its application can arise by inference only. To be 'express provision' with regard to something it is not necessary that thing should be specially mentioned ; it is sufficient that it is directly covered by the language however broad the language may be which covers it so long as the applicability arises directly from the language used and not by inference therefrom. Shanmugam v. Commissioner for Registration of I. and P. Residents (2). There is neither a prohibition on vesting any of the enumerated powers and functions, nor any restriction permitting delegation only in respect of minor or routine matters. Although Rule 8 (2) refers to the Executive Committee as " the administrative authority ", there are numerous other Rules directly conferring important administrative powers and functions on the Working Committee, such as (a) Notwithstanding any other provision, the Working Committee has the power to dissolve any District Balamandalaya, Polling Division Organisation, or Main Association (Rule 2A(4)). (b) The Nomination Board appointed by the Working Committee, in consultation with the Working Committee; shall nominate a candidate for the Presidency (Rule 9 (a)), as well as candidates for other elections (Rule 9(b)). (c) When a vacancy occurs in the office of President, the Parliamentary Party in a joint session with the Working Committee shall select the Party candidate (Rule 9 (c)). (d) It has the power to approve the constitution and the recognition of local and affiliated organisations (Rules 2A(1), 2A(2), 2A(6) and 3(1)(e)). (e) It may issue directives to members as to their attitude at elections where there is no Party candidate (Rule 3 (1)(c)). (f) It has power to correct any mistake or omission in, and to give necessary directions in the interpretation and implementation of, the Party Constitution (Rule 21). The Party Constitution thus does not treat the Working Committee as a subordinate body to be entrusted only with routine matters of daily administration. I hold that Rule 8 (3) (m) expressly empowered the Executive Committee to vest all or any of its powers and duties whether expressly enumerated or not. The delegation in question does not purport to be permanent or irrevocable, and thus there has been in fact no " denudation " of its powers by the Executive Committee; it is unnecessary to consider whether any such " denudation " would be of no effect. 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 remained free at any subsequent meeting to revoke or vary such delegation. In particular, it could justifiably have taken the view that the advantage of itself conducting disciplinary inquiries was far outweighed by the disadvantages. It remains to consider the final submission that it is easier to delegate an administrative function than a judicial function : Young v. Fife Regional Council, (3) ; and that even if all other powers and duties may be delegated very different considerations apply to the delegation of disciplinary powers: " A statutory power to delegate functions, even if expressed in wide general terms, will not necessarily extend to everything. Thus it has been held that the General Medical Council must itself exercise its disciplinary powers over dentists and cannot delegate them to its executive committee, even though it has express statutory power to act through such a committee for the purpose of its functions under the Dentists Acts. In the case of Important judicial. and disciplinary functions the court may be disposed to construe general powers of delegation restrictively." (Wade, Administrative Law, 5th Edition p. 325) General Medical Council v. U. K. Dental Board (4) is cited. Under the Act of 1878, the Council had no power to delegate its disciplinary powers ; it could ascertain the facts through a Committee. In 1921, the law was amended, by establishing the Dental Board. The Council continued to have disciplinary powers, but the Dental Board was in effect substituted for the Committee. The 1921 Act further provided that the Council, for the purpose of its 16 of 56 4/20/2011 1:18 PM 162 163
Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... functions, had power to act by an executive committee of the Council. It was held that the Council could not delegate its disciplinary powers to such executive committee. The apparently wide terms of the latter provision were on examination found to be inconsistent with the detailed scheme, existing from 1878, under which the Council exercised disciplinary powers, after obtaining a report from the Committee (and later the Dental Board). It was held that the wide terms of that provision were necessarily restricted by the other, and inconsistent, provisions of the statute. In the Party Constitution, there is no such inconsistency. Further the Working Committee possesses as already noted, power analogous to the disciplinary power, namely to dissolve member organisations. Learned President's Counsel was able to point only to two features of the Party Constitution as militating against delegation of disciplinary powers. Rule 8 (2) makes the decisions of the Executive Committee final, subject to review by the Party Convention. If disciplinary powers are delegated to the Working Committee, this right of review will be lost. It is not clear whether " review " includes the right to reverse or vary a disciplinary order, but assuming that it does, it appears to me that a decision of the Working Committee, in the exercise of delegated authority, will, for the purpose of Rule 8 (2), be deemed to be the decision of the Executive Committee, i.e. a decision made vicariously by the Executive Committee and therefore subject to review just as a decision made directly : quio facit per alium facit per se. The second matter urged by him was that the allegations against the Petitioners related to questions of policy, and policy was a matter for definition by the Executive Committee (Rule) 9 (f)) ; hence the Executive Committee was best qualified to determine what policy was, and whether it had been violated. That is not a consideration applicable to the delegation of disciplinary powers in general, but only against delegation in matters involving policy. In any event, it is not necessary, and may not even be desirable, that the body which lays down policy should determine whether there has been an infraction : just as legislatures are generally not considered best suited to determine whether the laws enacted by them have been infringed. On the other hand, it is perfectly reasonable to infer that a body with 2500 members was never intended to exercise powers of a quasi-judicial nature, especially where facts had to be inquired into. I therefore hold that 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). Although argued at length, it is unnecessary to decide the further question whether the " endorsement " by the Executive Committee of the decision of the Working Committee constituted a valid ratification thereof. 5. THE GROUNDS FOR EXPULSION (a) Position of Member of Parliament vis-a-vis his Party Learned President's Counsel for the Petitioners submitted that the position of a member of Parliament vis-a-vis the political party to which he belonged at the time of election, and his rights, powers and privileges to speak and act according to his own conscience and independent judgement, was governed by the following principles (i) Prior to 1978, a Member was not a mere delegate of his Party, and enjoyed complete freedom of action and decision making; there was no legal fetter on his conduct in Parliament. (ii) This position was not changed by the 1978 Constitution, and the 14th Amendment, which did not reduce a Member to a mere cog in the Party machine. Despite the introduction of Proportional representation, other " pivotal " provisions (especially Article 4 (a)) in regard to the position of Members remained unchanged. The 14th Amendment could not be regarded as having altered those provisions by implication, in view of Article 82 (1) and (6). (iii) A Member of Parliament is " immune from the dictatorship of the political party to which he belongs " because under Article 4 (a), read with Article 3, he is an elected " representative " of the people, and not a mere "delegate ". Parliament exercises the sovereignty of the people, and the essence of sovereignty is that the body declared sovereign is free of any external restraints and is not subordinate to any other body. (iv) Article 3 provides that sovereignty includes fundamental rights (cf. Article 4 (d)) among which are freedom of thought, conscience, speech and expression. (v) Article 67 preserves the privileges, immunities and powers of Parliament and its Members ; these include 17 of 56 4/20/2011 1:18 PM 164 165
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