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 ...
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
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