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 ...
not extend to conduct qua Member of Parliament, but there is nothing to justify such a restrictive interpretation of
Article 99 (13) (a). Article 99, as first enacted, gave overwhelming prominence to the party, and not to the individual
candidate for election : nomination was of the party, which determined the order of priority of candidates on the
party list, whose names did not even appear on the ballot paper, and votes were cast for the party. The 14th,
Amendment did away with the pre-determined order of priority, and enabled the voter, after casting his vote for the
party, to express preferences for candidates. Even before, if was arguable whether voters were influenced more by
the party or the individual candidates, but after 1978 the choice was primarily between rival parties, although
certainly the identity of the candidates continued to be of some relevance. Hence the position of the individual
Member vis-a-vis his party is undeniably weaker in Sri Lanka than in the United Kingdom ; he does not enjoy the
same freedom to resign from his party and to cross the floor of the House, and to continue as a Member. The word "
representative in Article 4 (a) is by no means conclusive in favour of the " free mandate " theory, and the position of
a Member has to be determined by examining the relevant provisions of the Constitution as a whole. It is neither
possible nor necessary in this case to attempt a comprehensive definition of that position, and it is sufficient to
ascertain whether he retains a power of independent action, in any significant respect.
I take the view that a Member has not been reduced to the position of a mere cog in the party machine,
bereft of any independence of action. While his relationship to the party tends to suggest that he has no
independence, 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 matters
concerning Parliamentary privilege ; in determining, both the facts and the law, as to whether a Member or an
outsider has committed a breach of privilege, it is unthinkable - in the absence of specific provision to that effect -
that the Constitution intended a Member to act otherwise than judicially. In exercising power to remove high officers
(Commissioner of Elections, Auditor-General, and Ombudsman : Articles 103 (3) (e), 153 (3) (e) and 156 (4) (e))
and Judges (Article 107 (2)), a Member likewise performs not just a discretionary administrative function, but a
quasi-judicial function, for there can be no party policy as to the existence of facts warranting removal, which
must be determined solely on the evidence. If he did not, a serious question may well arise as to whether Parliament
is an institution whose judicial functions are liable to judicial review for instance under Article 140. That I do not have
to decide, but it is clear that Members do have certain discretionary functions, were they must not act under
dictation. In considering whether a Member has a similar discretion under Article 38 (2), it is relevant that the like
power under Article 107 (2) is quasi-judicial. It is also relevant that under Article 37 (2), the Chief Justice in forming
an opinion, in consultation with the Speaker, that the President is temporarily unable to discharge the duties of his
office, is clearly required to act judicially. If that opinion is formed on account of physical infirmity, which thereafter
persists, and if Parliament is then called upon to act under Article 38 (2) (a), in respect of that same infirmity, can it
be that Parliament is not required to act judicially? It seems to me that if " suspension " from office requires the
exercise of an independent discretion, then necessarily the entire process of " removal ' must also be discretionary ;
party policy and party discipline may apply, in the same way as such considerations legitimately apply to other
discretions, but the decision is ultimately one of conscience and independent judgement. Learned President's
Counsel for the Respondents strenuously contended that the removal of a President must be looked at very
differently from the removal of Judges and high officers, because the President is directly elected by the people, and
his election and continuance in office involve questions of policy and politics ; he thus attempted to minimise the
element of discretion. Article 38 (2) has placed three hurdles in the path of removal of a President; accepting this
contention would add a fourth, namely approval by the majority in one or more party Parliamentary groups, and this
may well be an insurmountable barrier, which will make Article 38 (2) inoperative. That contention must fail for
another reason as well ; Article 38 (2) applies equally to a President not directly elected by the people, for it is
possible for a Member to be elected President, under Article 40, even though he has never faced any election in his
life (e.g. if he was nominated to Parliament under Article 99A).
(b) Signing the notice, and agitating for Constitutional change
It would be quite unrealistic to treat these as two unconnected and severable issues. The Petitioners'
position is that defects and anomalies in the working of the Executive Presidential system enabled abuse and misuse
of executive power by the President ; when such abuse and misuse were observed, the need arose for removal ;
and it was only then that the necessity for constitutional reform was realised. It is implicit in this position that but for
such alleged abuse and misuse of power, they would not have appreciated the need, and would not have agitated,
for constitutional change.
The Petitioners contend that they had a constitutional right to sign the notice of resolution, exercising their
independent judgment and discretion, by virtue of Article 38 (2), and also that such conduct could not have been
questioned in any place outside Parliament, by virtue of the Parliament (Powers and Privileges) Act ; they were
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