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 ...
also applies to ecclesiastical rights and offices : (R v. Archbishop of Canterbury (57) , Capel v. Child (58), Bonaker . v.
Evans (59) , R v. North, ex. p. Oakey (60) to the deprivation of University degrees for misconduct (Bentley's Case, R. v.
University of Cambridge) (61) , Re Perqamon Press Ltd. (62) ) ; and to some extent in relation to academic discipline
(University of Ceylon v. Fernando (63) , R. 505 ; R. v. Aston University (64) , Blynn v. Keele University (65) , cf. Herring v.
Templeman (66) ). Exceptionally natural justice applies to some preliminary investigations as to whether a prima facie
case has been established, if serious legal consequences could ensue (Selvaraian v. Race Relations Board (67) ).
Indeed, " there has been a marked expansion of.......... natural justice and fairness reaching beyond statute and
contract : (McInnes v. Onslow-Fane (68) ).
A further source of confusion has been the suggested distinction that " in the sphere of the so-called quasijudicial
the rules of natural justice run, and that in the administrative or executive field there is a general duty of
fairness " (Bates v. Lord Hailsham (69) , cf. Pearlberg v. Varty (70) , Re Pergamon Press).
" But other judges have expressed what is clearly the preferable view, that there is no difference in principle
between natural justice and 'acting fairly', but that natural justice is a flexible doctrine whose content may vary
according to the nature of the power and the circumstances of the case. In the words of Lord Denning, M.R., the
rules of natural justice - or of fairness - are not cut and dried. They vary infinitely. Attempts to represent natural
justice and 'acting fairly' as two different things are a sure sign of failure to understand that administrative powers
are subject to the principles of natural justice." (Wade, Administrative Law, 5th ed. p. 467).
While I readily accept that exposition of the law, I must add that on the facts of this case any such distinction
would make no difference.
In Ex. p. Parker (71) , Lord Boddard, C.J., held that the exercise of disciplinary powers was not subject to
natural justice:
where a person ....... whose duty is to act in matters of discipline, is exercising disciplinary powers, it is
most undesirable ........ that he should be fettered by threats of orders of certiorari and so forth, because that
interferes with the free and proper exercise of the disciplinary powers which he has. "
Now, however, it is accepted that disciplinary bodies " must act fairly just the same as anyone else and are
just as subject to control by the courts " (Buckoke v. Greater London Council (72) , R. v. Hull Prison Visitors ex p. St.
Germain (73) ).
An expansive, rather than a restrictive, interpretation of the protection afforded by the principles of natural
justice is demanded by the equality provisions in Article 12 of the Constitution ; fairness lies at the root of equality
and equal protection.
Applying those principles, I do not find it necessary to consider whether the power of expulsion conferred by
the Party Constitution is judicial or quasi-judicial ; it is a power vested in a body of persons having authority to
determine disputed matters involving civil consequences to individuals ; it affects their rights and interests. The
numerous authorities which I have cited, are but part of a current - indeed, a flood - of authority, overflowing the
bounds of administrative law and statute, into contract, and even beyond, which it is too late to stem or to divert. In a
democratic multi-party system, political parties are voluntary associations, and the rights of members are contractual
in nature. There is nothing in the Party Constitution which tends to place a member in the position of a servant in an
ordinary master and servant relationship, or a person holding office at pleasure. The rights of members are of far
greater importance to the individual, and to the democratic way of life, than those of members of social clubs ; or
even rights relating to employment and livelihood. These applications are not for certiorari, and hence it makes no
difference that the duty to comply with natural justice arises from contract, and not from statute. I hold that the
power of expulsion contained in Rule 8 (3) (a) is subject to the principles of natural justice.
Natural justice has been described as " fairplay in action " or " fairness writ large and judicially ". Even if the
applicable standard was not " natural justice " but " the duty to act fairly ", the power of expulsion has to be
exercised fairly. In my view, fairness required
prima facie that the Petitioners be given notice of the allegations and the material evidence, an opportunity to
explain, controvert or mitigate the case against them, and the right to make submissions. This was not done. This
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