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 ...
" And Whereas the aforesaid acts have all been done by the eight members without first raising the said
issues within the Party Organizations or the Government Parliamentary Group as is required by the Party
Constitution and conventions "
It would be seen that paragraphs 5 and 7 are narrative of the facts and the actual charge with reference to
the resolution is contained in paragraph 11 which alone cites the provision which the petitioners have breached
namely, the Party Constitution and Conventions. I am, therefore, satisfied that the ground of expulsion is the signing
of the resolution without first raising it within the Party Organizations or the Government Parliamentary Group. This is
put beyond doubt by the minutes of the Working Committee meeting R1 at which the 2nd respondent stated that at
no time had any of these members informed the party that they intended moving through Parliament to remove the
Leader of Party from the Office of President. Nor had they made any charges against the President.
For the above reasons, I hold that the grounds on which disciplinary action has been taken against the
petitioners are valid. The question whether their expulsion is lawful and whether such punishment is justified in
respect of all of them will be considered later in this judgment.
BREACH OF THE RULES OF NATURAL JUSTICE
I have now reached the most difficult question in these proceedings. Numerous decisions and authorities
have been cited none of which is exactly in point because the combination of events with which we are here
concerned is unique. This is no ordinary expulsion of members of a voluntary association the like of which is covered
by precedent but an expulsion of the petitioners in the context of a resolution for removing the President from his
Office coupled with a sustained public campaign by the petitioners against the Executive Presidential System in the
course of which they have attacked the President and the Government. An attempt by the petitioners to obtain an
injunction from the District Court to restrain the UNP from taking disciplinary action failed whereupon the party moved
swiftly and expelled them.
In their petition they complain that they have been expelled without any charges being served on them and
without a hearing in breach of the party guidelines for conducting disciplinary inquiries (P9) ; that the said expulsion is
vitiated by bias in that the President who is the accuser and complainant presided over the deliberations of the
Disciplinary Committee and the Working Committee ; and that the
expulsion is mala fide in that (a) no disciplinary proceedings have been taken against the other members of
the party who signed the resolution and (b) it is calculated to prevent them from taking judicial proceedings in the
District Court and Higher Courts for the vindication of their rights. During the argument, Mr. H. L. de Silva, P.C.
submitted that according to the proceedings of the Working Committee (R1), the Disciplinary Committee which
recommended action against the petitioners subsequently participated in the deliberations of the Working Committee
which decided to expel the petitioners, which is further evidence of bias ; and that the expulsion was a move by the
supporters of the President to scuttle the impeachment motion, which is further evidence of mala fides.
In their objections the respondents have averred that the actions and conduct of the petitioners were so
manifestly and flagrantly in violation of party discipline and policy and the Constitution of the Party as to justify
immediate expulsion. They further state that the guidelines P9 have been issued for use by panels appointed by the
Working Committee for the purpose of conducting disciplinary inquiries where such inquiries become necessary and
for the general guidance of such panels conducting investigations into matters of disputed facts arising upon
complaints the truth of which has to verified. The respondents deny the alleged violation of the rules of natural justice
and the allegation of mala fides.
Mr. de Silva cited many cases relating to social clubs, trade unions and voluntary associations in which
decisions for the expulsion of members have been struck down for want of a fair hearing. He submitted that none of
the exceptions to the audi alteram partem rule would apply to the petitioners. The rule that no man should be
condemned without a fair hearing is too well settled and requires no discussion. As such it will be unnecessary to
discuss the cases cited by learned Counsel. However, it would be relevant to quote a passage from the judgment in
John v. Rees (77) cited by Mr. de Silva. This was a case in which a resolution of the Labour Party, inter alia,
suspending the activities of the Pembrokcshire Constituency Labour Party was challenged. Megarry J. quoting from
his own judgment in Fountaine v. Chesterton (unreported) said (p. 1332) -
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