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 ...
that much of it cannot be described as moderate and reasoned argument designed to convert those who hold what
are conceived to be erroneous views " (p. 374).
He held that, in the circumstances, Article 7 (B) excludes natural justice ; the Council was under a duty to
exercise their powers in what they bona fide believe to be in the interest of the Corporation ; this includes a duty to
act with great speed unfettered by natural justice. He observed that a member had no absolute right of membership
but that it was subject to bona fide termination. If he were wrong, in that view he thought that the injunctions should
be refused as a matter of discretion.
Mr. Choksy's final submission on this part of the case relates to the possibility of excluding the need for a
hearing, in limited cases, where there is statutory provision for subsequent review. The proposition is that a statutory
right for an administrative appeal or even full judicial review on the merits is sufficient to negative the implied duty to
hear before the original decision is made, provided that there is no serious detriment to the person affected or there
is also a paramount need for prompt action ; this is not meant to be adopted as a general rule ; but if in particular the
initial decision is provisional in the sense that it does not take effect until the expiry of a prescribed period for
objections, the opportunity thus afforded to an aggrived person is in substance a right to an antecedent hearing. De
Smith's Judicial Review of Administrative Action 4th Ed. 193-194.
Mr. de Silva contends that this Court should not lightly assume that hearing was a useless formality or
speculate on how the Working Committee might have acted if they heard the petitioners ; and that if the respondents
acted fairly they would not have resorted to summary expulsion of the petitioners. He urged us to bear in mind that
by reason of the procedure adopted, the petitioners have been deprived of an irreplaceable right. He cited the
following passage from John v. Rees (77) (1969) 2 WLR 1294, 1335 Megarry J. said
"............ the path of the law is strewn with examples of open and shut cases which, somehow, were riot; of
answerable charges which, in any event, were completely answered ; of inexplicable
conduct which was fully explained ; of fixed and unalterable determinations that, by discussions, suffered a
change."
I appreciate that it is not possible to come to a finding on the contentions advanced before us on a
piece-meal approach with reference to this authority or the other. In my view our decision rests on an application of
more then one principle, cumulatively, to the facts and circumstances of this case bearing also in mind the legal
safeguards to which the petitioners are entitled. In this respect, Mr. Choksy drew our attention to the averments
contained in the petition and contended that all the grounds of challenge to the expulsion are legal grounds based on
the provisions of the Constitution or statute law and the interpretation of the UNP Constitution and the determination
of the contractual obligations of the petitioners to the party ; that the basic facts of signing the resolution and
conducting a campaign against the Executive Presidential System are admitted ; that their expulsion has not taken
effect and its validity is yet to be decided by this Court ; and that the conduct of the petitioners established by the
evidence including the documentary evidence before this Court completely justifies the decision to expel them from
the party without a hearing. This brings me to an examination of the evidence relating to the conduct of the
petitioners.
The Speaker's communication of the notice of the resolution to the President on 28.08.91 was the beginning
of a serious crisis in the government. In R6, the Leader of the Opposition is reported to have told the press that she
had secret talks with UNP M.P.s over a period of time about the resolution ; petitioners deny this and hence R6
cannot be held against them even if they had failed to publish a contradiction thereof in the press. However, the
resolution itself could not have come about suddenly without some secret planning by the petitioners while they
remained as fully committed members of the party. Even after the resolution had been delivered to the Speaker, the
petitioners Nos. 5 and 8 were secretive and pretended to join the other members of the Cabinet in passing a vote of
confidence in the President. No explanation acceptable to this Court has been adduced justifying such conduct and I
agree with Mr. Choksy that these two petitioners are thereby guilty of gross misconduct. The two Ministers then
resigned from the Cabinet. The petitioners Nos. 6 and 7 followed suit having resigned from the posts of State
Minister
and Project Minister respectively. Thereafter all the petitioners launched a joint public campaign.
R3A to R3G and R4A to R4L clearly show the campaign carried on between 28.08.91 and 06.09.91, prior to
the impugned expulsion. As stated earlier in this judgment, during this period the petitioners not only campaigned
against the Executive Presidential System but also discussed in public the various allegations contained in the
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