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 ...
tribunal may have in the discharge of its functions having regard to the object or purpose of the body e.g. the interest
of the Medical Council in dealing with improper conduct in the profession. Judicial Review of Administrative Tribunals
in South Africa L.A. Rose Innes 176, 177. S. A. de Smith (Judicial Review of Administrative Action 4th Ed.) refers to
the element of personal hostility or friction which may form the history of the expulsion of a member of a voluntary
association and states -
" The ground of expulsion may be opposition to the declared policies of the association. The rules of the
association permit the committee to act, in a sense, as Judges in their own cause. The expelled member will not,
therefore, succeed in having the decision set aside by the Courts merely by demonstrating that the committee were
not, or were not likely to be, impartial towards him " (p. 264).
Dealing with special problems in the administration of internal discipline in certain bodies and associations de
Smith observes that the decision makers can hardly insulate themselves from the general ethos of their organization ;
they are likely to have firm views about their affairs and will often be familiar with the issues before they enter upon
adjudication. He therefore suggests that the rule as to bias must be tempered with realism for instance by requiring
evidence of actual bias rather than mere likelihood of bias before a decision is set aside by a Court (p. 256).
Mr. Choksy submits that one of the objects of the UNP under Rule 4(a) of its Constitution is to gain power at
elections ; that this includes remaining in power for carrying out its programme of work ; and that the interest for
maintaining cohesion in the party and the interest in party policy including the continuance of the Executive
Presidential System is not bias ; the members of the Party Councils including the 2nd respondent are entitled to such
interests ; that there was nothing wrong in the members of the Disciplinary Committee in participating in the
deliberations of the Working Committee ; that at the meetings they did not go into the merits of the resolution but
expelled the petitioners on account their actions without first raising the issues within the party ; and that the
presence of the President without participation does not violate the decision of the Working Committee.
On the alleged mala fides, Mr. Choksy submits that there was nothing wrong in taking proceedings against
the petitioners soon after the order of the District Judge as it was necessary to act urgently in the interest of the
party and to prevent confusion which the petitioners sought to create in the country in breach of their party
obligations. Replying to the complaint that disciplinary action has been taken only against the petitioners, the
respondents state that no action was necessary after joint action was taken by 116 M.P.s in R15 and R16.
However, the allegations against three of them have been referred to the Disciplinary Committee for consideration
and recommendation to the Working Committee.
Having considered the submissions of Counsel for the parties in the light of authorities and the evidence, I
hold that the decision of the Working Committee (P1A) is not vitiated by bias or mala fides.
EXPULSION; IS IT WARRANTED?
Mr. Choksy submits that the conduct of the petitioners subsequent to their expulsion confirms the view that
their conduct prior to that constitutes gross misconduct. In the statement of facts, I have referred to the fact that as
from 10.09.91 they proceeded to hold public meetings in the major towns in the country. I shall refer to some of
these meetings for another purpose. On the question of the appropriateness of the expulsion, I am of the view that it
is justified solely on the ground of their conduct prior to the expulsion.
I have indicated earlier that the duty of the party should be construed not in the narrow sense of its political
interests but in the context of its larger duty to the people as their repository of their mandate to ensure stable
government in the country irrespective of any differences of opinion which may exist in a democratic set up. It is the
people who have to bear brunt of all upheavals, economic, social and political. Left to themselves they are perhaps
content to await the next election to resolve issues such as the Executive Presidential System. Even if members of
the party wish to raise such issues prematurely they should do so peacefully as has been in fact done when the Sri
Lanka Freedom Party met the President in 1989 (P16) and subsequently in the deliberations of the All Party
Conference. These petitioners have engaged the public on the issues in breach of party obligations and in a manner
likely to disrupt normalcy in the country. There is nothing to mitigate their conduct and the order of expulsion is logical
and justified. It seems to me that the petitioners are attempting .to do the impossible i.e. to revolt against the party
and the government as non members may do and yet to retain their seats as M.P. s under the party label. That was
possible prior to 1978 when members were free to cross the floor but not under the present Constitution. On the
facts of this case, I am of the view that the remedy of expulsion befits the mischief unleashed by the petitioners.
The evidence shows that all the petitioners have acted conjointly each of them playing a vital role, whatever
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