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 ...
against the Executive Presidential System. According to the respondents, the said events coupled with the
petitioners' conduct in failing to first raise the issues within the Party organizations represent a repudiation of the UNP
Constitution and a flagrant breach of party displine and a cover for insulting the character, integrity and ability of the
Leader of the Party in his capacity as President of the country which eventually brought the Party and its Leadership
to disrepute and held it up to public ridicule.
The petitioners take up the position that in respect of both events referred to above their acts are protected
by Article 4 (a) and (e) read with Article 93, 10, 14 (1) (a) and 38 of the Constitution and Section 3 of the Parliament
(Powers and Privileges) Act (Cap. 383) that the grounds of expulsion derogate sovereignty, their freedom of thought,
conscience, speech and expression and their privileges as Members of Parliament assured by the aforesaid
constitutional and statutory provisions. They deny having repudiated the Party Constitution and state that in any event
the provisions of the Party Constitution in particular Rules 7(3), 9(4) and 17(2) thereof relied upon for the expulsion
cannot override such protections, freedoms and privileges and accordingly the order of expulsion is invalid. As
regards the allegation that they failed to first raise the issues within the Party organizations, they state that there did
not exist a measure of freedom to raise matters which would involve a curtailment of Presidential powers.
Mr. de Silva, P.C. concedes the right to take disciplinary action but submits that expulsion (which has the
consequence of loss of Membership of Parliament) cannot be effected on grounds which are contrary to the
Constitution which is the paramount law ; contractual obligations are secondary norms. 'General Theory of Law and
State' Kelsen (1961) 124, 137. Learned Counsel vehemently contended that the grounds of expulsion are based on
alleged breaches of the provisions of the UNP Constitution which strike at the very root of the fundamental postulates
of the Constitution. He was particularly critical of Rule 7(3) (obligation of government M.P. s to take directions from
the Party Leader or the Leader of the Parliamentary Party as to the conduct of matters in Parliament) ; Rule 9(g)
(obligation of M.P.s to conform to the principles, policy, programme, rules and code of conduct and standing orders
of the Party) and Rule 17(2) (obligation of M.P.s to vote in Parliament according to the Mandate of the Parliamentary
Party conveyed through the Whip of the Party).
Dealing with the ground of expulsion based on the petitioners' conduct in signing the notice of resolution,
learned Counsel referred us to 'Theory and Practice of Modern Government' Finer (1946) Vol. l 633-652 and
submitted that the 'free mandate' theory discussed therein and which is enshrined in some continental Constitutions is
implicit in our Constitution (Articles 4(a), (e) and 93) ; that accordingly a member is not bound by instructions ; and he
cannot be penalised for anything done in Parliament. Signing the notice of resolution was not a breach of the UNP
Constitution ; on the contrary it was their duty to the nation under the Constitution of the Republic to give such notice
(Article 38). Such notice is a "proceeding" in Parliament which cannot be impeached outside the House for want of
prior permission for it. The conduct of the petitioners in having signed it is similary protected by the provisions of
Section 3 Parliament (Powers and Privileges) Act ; see also, Parliamentary Practice - Erskine May 19th Ed. 87.
Counsel conceded that if the sole motive for signing the resolution was to humiliate the Leader of the Party and mala
fide, disciplinary action is competent ; but there ought be evidence of such motive. He also submitted that if the
emphasis in the charge against them is signing the resolution with some members of the opposition, Article 38 is a
complete answer.
As regards the campaign against the Executive Presidential System, Counsel submitted that the Party is not
irrevocably committed to continue that system ; that in any event the petitioners were not seeking to abolish but to
reform it by remedying anomalies ; that any peaceful advocacy of change is 'a legitimate exercise of the freedoms
guaranteed by Articles 10 and 14(1)(a) of the Constitution ; that even if it were a matter of Party Policy, the party
cannot exercise an unqualified right of expulsion for contravening such policy but should consider disciplinary action
short of expulsion ; that expulsion would be warranted only in the case of serious conduct such as bribery or
offences involving moral turpitude ; and that the campaign intended to reform the party is permitted by the objects of
the party contained in Rule 4(c) of its Constitution namely, the promotion of the political education of the people and
their political emancipation on the basis of Democratic Socialism. It was also submitted that the allegation that the
petitioners should have first raised these matters within the party assumes that there is a measure of freedom within
the party to raise such matters. Counsel argued that the UNP Constitution
imposes a centralised system which negatives freedom ; and this is aggravated by the provisions which
enables the Leader to enjoy full power ; that matters had reached a stage when no discussion was possible and the
action taken by the petitioners was logical and within their rights ; and that actions for reforming the party are also
legitimate even if the party were to thereby suffer disintergration. These rights, it was submitted, cannot be
comprehended under party discipline.
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