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 ...
GROUNDS URGED AGAINST THE EXPULSION
The petitioners challenge the expulsion on three grounds namely,
(a) absence of jurisdiction in the Working Committee ;
(b) inconsistency with the provisions of the Constitution of Sri Lanka and Statute Law ;
(c) breach of the rules of natural justice.
They allege that the decision to expel them is mala fide.
ABSENCE OF JURISDICTION IN THE WORKING COMMITTEE
The two main constituent bodies of the UNP are the Party Convention and the National Executive Committee.
The former is the largest representative body at national level and meets regularly once a year. The latter is the
Administrative Authority of the Party at national level and consists of approximately 2500 members. Under Rule 8 (3)
it has the power, inter alia, to take disciplinary action against any member in a manner suitable to the circumstances
of each case and mete out punishment. The Working Committee is established by Rule 8 (3) (m) and is appointed by
the Leader of the Party from the NEC consisting of himself, Deputy Leader and all other office bearers and any other
members not exceeding fifty. The same rule confers on the Working Committee the authority to exercise the powers
and functions vested in it by the NEC. By a resolution of the NEC dated 19.04.91 (R2) the Working Committee has
been vested with full powers to carry out the responsibilities and functions of the NEC.
Mr. H. L. de Silva, P.C. for the petitioners strenuously contends that under rule 8 (3) the power to take
disciplinary action is vested solely in the NEC ; that such power being judicial or quasi judicial it can be exercised by
the NEC alone ; that Rule 8 (3) (m) which provides for vesting of powers as opposed to delegation would enable
the NEC to give away only its ancillary powers e.g. running of the Head office, fund raising or propaganda ;
that R2 is a wholesale divesting by the NEC of its power vested in it by the UNP Constitution and the Working
Committee cannot exercise such power in the absence of an amendment to the Constitution enabling the delegation
of particular powers ; that R2 is outside the contemplation of Rule 8 (3) ; that even assuming the possibility of a
delegation of powers, NEC cannot delegate its disciplinary power because Rule 8 (3) (m) is in general terms and
gives no such power either expressly or by necessary implication. Mr. de Silva cited a number of decisions including
Barnard v. National Dock Labour Board (35) ; Vine v. National Dock Labour Board (36) and Young v. Fife Regional
Council (37). The first two cases relate to sub delegation of powers not authorised by statute. In the third case
power was delegated without any authority therefor. In Vine's case Lord Somervell said -
" I am, however, clear that the disciplinary powers whether " judicial " or not, cannot be delegated " (p. 951)
In Young's case it was held that the delegation was not empowered expressly or by necessary implication and hence
the decision made in virtue of delegation is a nullity ; per Lord Ross p. 334.
Mr. de Silva further submits that the expulsion in P.1A being invalid, the NEC could not have validated it by its
endorsement R5 ; he supports this with the decisions in Barnard's and Vine's cases (Supra) and Blackpool
Corporation v. Locker (109).
Mr. Choksy, P.C. for the respondents submits that in the cases cited by Mr. de Silva the power had been
delegated without any authority therefor or there was held to exist an unauthorized sub-delegation of power ; here is
a case where the power to delegate is conferred expressly by Rule 8 (3) (m) ; the word 'vest' appearing therein,
properly construed in the context and as appearing in a non-statutory document, means "delegate" ; and hence the
power may be withdrawn expressly by revoking R2, and there is no abdication of power by the NEC. He concedes
that the power may even be impliedly withdrawn in the event of NEC resuming the exercise of power see Huth v.
Clerk (110). Mr. Choksy contends that the power of delegation in Rule 8 (3) (m) is express and unqualified and the
Court cannot by interpretation limit that power ; that in any event
the power given by the said rule is by necessary implication very wide and is absolutely necessary for the
proper functioning of the Party ; that it forms part of the contract between members of the Party which cannot be
avoided unless it is contrary to public policy or the law. He argues that the petitioners cannot seek to vary it on the
41 of 56 4/20/2011 1:18 PM
216
217