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 ...
allegations contained in the notice of resolution as well as other criticisms of the President and appealing for the
abolition of the Executive Presidential system and the restoration of Parliamentary Democracy making the Executive
directly responsible to Parliament. This campaign also revealed that opposition members had been associated with
the petitioner in regard to the notice of resolution and that the petitioners desired the widest possible publicity for
their views. It was claimed that 47 members of the UNP had signed the notice of resolution.
On 03 September 1991, 116 members of the Government Parliamentary Group presented to the Speaker a writing
dated 30 August 1991 stating that they do not support the resolution and those of them who had signed it were
withdrawing their signatures and consent and they claimed that they had signed through mistake or because of
misrepresentation.
On 05 September 1991 the petitioners anticipating disciplinary action by the Parry for expulsion instituted actions in
the District Court of Colombo for declarations and injunctions against steps being taken for their expulsion. On 06
September 1991 they were refused relief. Before they could go to the Court of appeal, the Disciplinary Committee of
the Party met the same evening and recommended expulsion. A meeting of the working Committee followed
immediately thereafter, and a resolution for the expulsion of all eight petitioners was passed. On 07 September 1991
the 2500 strong National Executive Committee (NEC) unanimously endorsed that decision. By letters dated 09
September 1991 the petitioners were informed that they were expelled from the party with effect from 06
September 1991 by a decision of the Working Committee. No reference was made to NEC's endorsement.
The petitioners continued their public campaign through meetings and rallies countrywide, press conferences and
publicity in the media
The petitioners filed the present applications and their principal challenge was on the following grounds
(a) Absence of jurisdiction in the Working Committee.
(b) Inconsistency with the provisions of the Constitution and Statute Law.
(c) Breach of the rules of natural justice particularly the audi alteram partem rule.
(d) Bias and mala fides.
Held :
The resolution of the NEC (passed on 19 April 1991) by using the phrase ' full powers to carry out the responsibilities
and functions of the National Executive Council ' manifests an intention to delegate all powers, duties and functions
including the responsibility and the function in relation to disciplinary matters.
The Party Constitution does not treat the Working Committee as a subordinate body to be entrusted only with routine
matters of daily administration. Rule 8 (3) (m) of the U.N.P. Constitution expressly empowered the National Executive
Committee (NEC) to vest all or any of its powers and duties whether expressly enumerated or not on the Working
Committee. The delegation in question does not purport to be permanent or irrevocable, and thus there is no
denudation of its powers by the Executive Committee. 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 was authorised to and did validly vest in or delegate to the Working
Committee its disciplinary powers under Rule 8 (3) (m). The Working Committee had jurisdiction to take disciplinary
action against the petitioners.
Our Constitution confers primacy to the political party as against the individual M.P. The party carries the mandate of
the electors and in turn gives a mandate to the M.P. The exercise of the rights of the petitioners qua MP's is
subordinate to the requirements of party discipline and their freedom to agitate matters in public is constrained by
reason of their obligations to the party which they have freely undertaken to honour. Issues in regard to leadership
and the system of government are matters of prime importance to the party and dissenting views should have been
the subject of internal discussion before being ventilated outside party circles. The internal discussion procedure was
mandatory even if the internal decision might not be binding. A member is not reduced to the position of a mere cog
in the party machine. Some of his constitutional functions are essentially discretionary and quasi - judicial, some even
judicial. Thus article 4 (c) enables Parliament to exercise the judicial power of the people in regard to parliamentary
;privilege.
2 of 56 4/20/2011 1:18 PM
137
138