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 ...
the members may well consider changing the Leader.
As regards the contention that there was no freedom to raise matters within the party, Mr. Choksy argued
that this is a bald statement ; there is no proof that the petitioners had been harassed for raising any matter ; nor
have they stated that they tried to raise the issues within the party. Counsel submitted that in the circumstances the
allegation that the petitioners failed to bring up matters within the party has not been rebutted. Counsel then
conceded that had the petitioners made any attempt to raise the issues before the party and the party had
capriciously rejected the allegations or the proposals for reform, the petitioners would be entitled to raise the matters
in public.
Mr. Choksy finally submitted that our Constitution confers primacy to the political party as against the
individual M.P.; that the party carries the mandate of the electors and in turn gives a mandate to the M.P.. In the
circumstances, the exercise of the rights of the petitioners qua M.P.s is subordinate to the requirements of party
discipline and their freedom to agitate matters in public is also similarly constrained by reason of their obligations to
the party which they have freely undertaken to honour.
Mr. Choksy relied on Waltham Forest L.B.C. case (Supra) in which the judgment of Sir John Donaldson MR
refers to the whip system approvingly both in relation to local bodies and Parliament and further
refers to Widdicomb report which states that the Whip system is not a matter for concern. (674) ; it also
refers to circumstances in which the requirement for consultation within the group would ensure party unity without
the councillors having to abdicate personal responsibility (676) Counsel submits that such consultation is vital to
effective government. He also cited dicta from the decision in ex P. Lovelace (Supra) on group policy (517) and
inevitable party constraints resulting from the existence of a party line or strategy to ensure cohesion (523).
Staughton W has this to say with reference to the off-quoted speech of Edmund Burke to the electors of Bristol in
1774
" One may doubt whether after 200 years, that is wholly in accord with the current political wisdom " (525)
In Dissanayake v. Sri Jayawardenapura University (11) where a student complained of the infringement by
the Vice Chancellor of his rights under Article 14(1)(a), this Court held that the right to the freedom of speech is not
absolute ; that students were bound by reasonable rules governing conduct ; and a student has the right to
peacefully express his views in an appropriate manner. Sharvananda, CJ said -
" A student may also exceed his constitutional right of speech and expression by adopting methods of
expression that materially and substantially interferes with the Vice Chancellor's right to his reputation. For nobody
can use his freedom of speech or expression as to injure another's reputation." (267).
Mr. Choksy sought to apply this decision by analogy to M.P.s and submitted that whilst their freedom of
speech in public is constrained by the requirements of party discipline, they also should before signing a notice of a
resolution under Article 38, first raise the matter within the party, which is the appropriate manner of exercising the
right consistently with their obligations to the party.
Mr. Choksy said that he relies on the judgment of this Court in Abeywardena's case (Supra) only on the
principle that an M.P. owes an obligation to the party. He argued that the theory of party system is the very soul of
our Constitution. In support of this he first cited passages from 'The Theory and Practice of Modem Government'
Finer (1946) Vol. 1632-652. He submitted that unlike some continental
Constitutions our Constitution does not contain any provision that an M.P. can vote according to his
conscience ; and this is because it is based on the political party ; that Finer himself observed at p. 641 that the
factor which today is of the most importance is the political party. At p. 646 the author examines the effects of the
proportional representation (P.R.) in Germany and observes that the method of voting for a single representative
among a number of individual competitors was abandoned and now the mandatory is, in fact, nobody but the party ;
that the party is obliged to control the campaign and the nominations ; and that members are bound in the first place
to the dictates of the party machine.
Mr. Choksy next referred us to the P. R. provisions contained in Article 99 of our Constitution and to the
provisions of Parliamentary Elections Act No. 1 of 1981 and drew our attention to the salient features of the system
provided thereunder, which are as follows :
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