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 ...
lodgest, I will lodge. Thy people shall be my people, and thy God my God ", there was no incipient violation of her
freedoms of religion, residence and movement, but only a voluntary self limitation. The politician who joins a political
party in order to enter Parliament can validly subject himself to a condition which regulates, without denying, his
freedom of speech. If you wish to play cricket, you must accept the rules of cricket ; if you are selected for the
team, it is very likely that you will have to agree to procedures about changing the captain.
(ii) There is a further consideration. The Petitioners' case was presented throughout as if only their rights,
and fundamental rights, were involved. The Party Rules involve all the other members as well. What of their rights?
Just as the Petitioners agreed not to criticise
their Party and colleagues in public, without prior internal discussion, so also their fellow-members undertook
a reciprocal obligation not to criticise the Petitioners. That is not all. The Petitioners sought to relegate the Party
Rules to the lowest level in the hierarchy of norms. But Article 99 (13) (a) impliedly recognises at least one aspect of
the Party Rules and discipline. More important, the rules of a political party are not a mere matter of contract, but
the basis of the exercise of the freedom of association recognised by Article 14 (1) (c) (and by section 18 (1) (f) of
the 1972 Constitution). One of the conditions. on which Party members agreed to exercise this fundamental right
was by mutually accepting reciprocal obligations placing limitations on the exercise of the freedom of speech by each
other, in the interests of their association. Hence no question of superior and inferior norms arises. Inherent in the
two freedoms is the liberty to make necessary adjustments. As between freedom of association and Parliamentary
privilege, it can hardly be said that the latter is a " superior " norm.
(iii) Insofar as Parliamentary privilege is concerned, learned President's Counsel for the Petitioners was
forced to concede that the conduct of a Member in Parliament can be questioned outside Parliament by a political
party or other Association of which he was a member. He submitted that this was limited to matters which were
fundamental: if a Member spoke or voted in Parliament against a particular economic or religious principle or doctrine
which was fundamental to such party, or if a member of a temperance association advocated the consumption of
liquor, disciplinary action was permissible. He submitted that supporting a resolution for the removal of the President
could never be fundamental, because it could never be a fundamental policy or principal of a party that a particular
individual should continue to hold that office. In answer to the question whether a Member guilty of some serious
misconduct in Parliament, but leniently dealt with - either because Parliament chose to treat it lightly or because
Parliament lacked the power to impose a greater penalty - could be penalised by his party, he doubted whether that
was permissible. But that would mean that a political party cannot insist on higher standards of conduct than
Parliament : which I doubt. If conduct can be questioned in regard to fundamental matters. I see no reason why it
cannot be questioned in regard to other matters, because the law itself makes no such distinction. However, it is
clear from Counsel's concession that there is an area in which disciplinary
action is permissible. In the United Kingdom, Parliament is not only sovereign but is the " High Court of
Parliament "; and Parliament can by an ordinary law define its privileges in any terms it pleases. The doctrine
restricting review by the ordinary courts must be viewed in that context. But the charge in the present case relates
essentially to a matter outside the area of proceedings in Parliament, and anterior to conduct in Parliament.
Whatever the position as to the act of signing, I am of the view that the Petitioners' conduct in regard to the failure to
observe the pre-condition as to internal discussions could be questioned in disciplinary proceedings leading to an
order of expulsion as contemplated in Article 99 (13) (a).
(d) Causing insult and injury to the President
There is not a word in the 2nd Respondent's statement to the Working Committee on this matter ; no
specific acts are mentioned. Although he did refer to newspaper reports, these have not been identified in the
minutes of that meeting. The newspaper reports produced contain some critical statements, but we cannot be
certain that these were produced to the Working Committee ; some of the statements are ambiguous. The Working
Committee could not have regarded this charge as having been proved, and expulsion on that ground cannot be
justified.
(e) Deceiving the Cabinet
This charge has been clearly and precisely referred to in the 2nd Respondent's statement and in the
expulsion resolution ; there is no ambiguity or uncertainty as to the facts. Expulsion on this ground was proper. I will
deal with this later.
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