Continued from last week
In the British House of Commons, there used to be a conscience vote on the restoration of the death penalty, which had been abolished in 1964. The opportunities for the ‘back bench’ members to take part in the full range of parliamentary activities are guaranteed in Parliament. The examples in Sri Lanka are those provisions in Parliamentary standing orders which enable an MP to submit and participate through individual members of ‘private members’ bills in the direct legislative function.
Law on expulsion of MPs
Jurisdiction of the Supreme Court: (Article 99 (13)(a) of the Constitution).
The petitioners in expulsion cases are required to file their petitions under Article 99 (13) (a) of the Constitution. Therefore, it is necessary to reproduce that Article here.
– Article 99(13)(a)
(13) (a) Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognised political party or independent group on whose nomination paper (hereinafter referred to as the “relevant nomination paper”) his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member:
Provided that in the case of the expulsion of a Member of Parliament his seat shall not become vacant if prior to the expiration of the said period of one month he applies to the Supreme Court by petition in writing, and the Supreme Court upon such application determines that such expulsion was invalid. Such petition shall be inquired into by three Judges of the Supreme Court who shall make their determination within two months of the filing of such petition. Where the Supreme Court determines that the expulsion was valid the vacancy shall occur from the date of such determination.
Aluwihare, PC J, in Ven. Athuraliye Rathana Thera’s case referred to the case of Tilak Karunaratne vs. Sirimavo Bandaranaike and Others, where Dheeraratne J., having examined the nature of the jurisdiction conferred on the Supreme Court in terms of the provisions of Article 99(13) (a) observed,
“The nature of the jurisdiction conferred on the Supreme Court in terms of the proviso to Article 99(13)(a) is indeed unique in character; it calls for a determination that expulsion of a member of Parliament from a recognized political party on whose nomination paper his name appeared at the time of his becoming such Member of Parliament, was valid or invalid.
If the expulsion is determined to be valid, the seat of the Member of Parliament becomes vacant. It is this seriousness of the consequence of expulsion which has prompted the framers of the Constitution to invest that unique original jurisdiction in the highest court of the island, so that a Member of Parliament may be amply shielded from being expelled from his own party unlawfully and/or capriciously. It is not disputed that this Court’s jurisdiction includes, an investigation into the requisite competence of the expelling authority, an investigation as to whether he expelling authority followed the procedure, if any, which was mandatory in nature; an investigation as to whether there was breach of principles of natural justice in the decision-making process; and an investigation as to whether in the event of grounds of expulsion being specified by way of charges at a domestic inquiry the member was expelled on some other grounds which were not so specified.”
Saleem Marsoof J in Perumpulli Hewage Piyasena v. Illankai Thamil Arsukachchi and others, SC Expulsion No.03/2010 also cited with approval, the aforesaid views expressed by Dheeraratne J in the majority judgment of Tilak Karunaratne’s case, regarding the nature of jurisdiction the Supreme Court must exercise in cases of this nature filed under Article 99(13) (a) of the Constitution.
Recently, the Supreme Court in Zainul Abdeen Nazeer Ahamed v Sri Lanka Muslim Congress and Others (SC Expulsion 01/2022) decided on 6.10.2023) (per Justice Padman Surasena) having reviewed the previous Supreme Court cases also come to the following conclusion:
“Thus, the Supreme Court in all the previous cases has consistently taken and maintained the position that the nature of the jurisdiction conferred on it by Article 99 (13) (a) of the Constitution: is not a form of judicial review; is not even in the form of an appeal; is rather an original jurisdiction analogous to an action for a declaration; is not a re-hearing; is indeed unique in character and original in nature vested in the highest Court of the island; is a very wide jurisdiction; is an original jurisdiction on which no limitations have been placed by Article 99 (13) (a); is sui generis; is original and exclusive; is a jurisdiction to determine the validity or otherwise of an expulsion in terms of the proviso to Article 99(13)(a) of the Constitution; is neither injunctive nor discretionary; is indeed unique in character. I agree with the above views consistently taken by this Court.”
“Thus, this Court is under a duty as empowered by Article 99(13)(a) of the Constitution, to examine the merits of the decision of the SLMC expelling the Petitioner from the party as the Petitioner in the instant case has invoked the jurisdiction of this Court vested in it under Article 99 (13)(a) of the Constitution.”
Effect of breach of the rules of natural justice in expulsions
One question to consider is what would happen when there is some breach of the Rules of Natural Justice in particular, the Rule of Audi Alteram Partem. For that purpose, it is necessary to refer to several previous instances where the Supreme Court had considered this aspect when it had exercised its jurisdiction under Article 99(13) (a) of the Constitution.
Even in the minority judgment in Gamini Dissanayake’s case, Justice Fernando having considered all the authorities before him, had recognised the fact that there are several cases in which decisions have been allowed to stand although such decisions had been taken without a hearing.
Fernando J in that case had listed some of the categories to which such cases belong: the instances where there is ‘no legitimate expectation’ of a hearing; the instances where a hearing becomes a ‘useless formality’; the instances where there is ‘no injustice or no real prejudice’; the instances where there is ‘urgency’ to take a decision; the instances where there is ‘discretion’ on the decision maker; the instances where there is a ‘subsequent hearing also taking place after the impugned decision which ‘is enough’; the instances where the person aggrieved by the decision could not have adduced any evidence even if an inquiry was held; the instances where the case is in the nature of “open and shut case”.
The petitioner in Rambukwella Vs. UNP and others, (2007(2) SLR329), being a Member of Parliament has filed that petition in terms of Article 99(13)(a) of the Constitution, for a determination that his expulsion from the United National Party (UNP), is invalid. In that case also, the Supreme Court had held that the expulsion of the petitioner in that case by the UNP was invalid.
That was because the reasons such as: the cogent material pointing to the absence of jurisdiction of the body which had taken relevant disciplinary action against the petitioners; the denial of legal representation to the petitioner, which would have enabled the petitioner to show to the satisfaction of the body and to establish the absence of jurisdiction; the defects in there solution of the national executive committee in that the said resolution had not been seconded by any person, or put to vote before national executive committee, i.e., because the resolution was ex facie defective since no person seconding it nor the matter being discussed or put to vote before the national executive committee; the fact that the petitioners conduct could not have possibly come within the ambit of Article 3.4(d) of the constitution of the United National Party under which the petitioner in that case was charged etc. were present in that case. Sarath N. Silva CJ in that case, held as follows:
“Although membership of the Party has a concomitant liability to disciplinary action in terms of the Constitution of the Party as correctly submitted by Counsel for the respondents, in deciding on the validity of an expulsion, which has the further implication of the loss of the seat in Parliament, the overall conduct of the person subject to such action has to be taken into account”.(At page 334)
Does the absence of a formal inquiry vitiate the expulsion?
Thus, the forgoing judicial precedence shows that any breach of the Rules of Natural justice alone cannot finally decide the validity of the expulsion of a petitioner in a petition filed under Article 99 (13) (a) of the Constitution.
Next, it is necessary to turn to the question whether the absence of a formal inquiry would vitiate the decision of a party to expel its members. In doing so, it is necessary to refer to the approach the following three English cases had taken on the above question. These cases would be relevant in that regard as both Kulatunga J in Gamini Dissanayake’s case and later Padman Surasena J, in Nazeer Ahamed’s case have adopted those principles.
These three English cases are as follows:
(1). Gaiman v National Association for Mental Health
(2). Glynn v Keele University and Another
(3). Cinnamond and others Vs. British Airports Authority
It is pertinent to discuss in outline the facts and Lord Denning’s judgment of the Cinnamond’s case. In that case, six minicab drivers (the appellants in that case), had been prosecuted on numerous occasions by the British Airports Authority for loitering at an airport owned and operated by the Authority and touting there for passengers. They persistently refused to pay the fines and continued to loiter and tour for fares.
Acting under a byelaw which empowered the Authority to prohibit any person from entering the airport except as a bona fide airline passenger, the Authority by notice prohibited the appellants from entering the airport until further notice. The Authority had not given any opportunity for the appellants to make any representations to the Authority before the ban was imposed. Thus, one of the grounds upon which the appellants sought a declaration from Courts that those notices were invalid was that there had been a breach of the Rules of Natural Justice.
Counsel for the petitioner cited an important passage from Prof. Wade’s Administrative Law.
“In the case of a discretionary administrative decision, such as the dismissal of a teacher or the expulsion of a student, hearing his case will often soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be justified.”
Lord Denning said:
“I can see the force of that argument. But it only applies when there is a legitimate expectation of being heard. In cases where there is no legitimate expectation, there is no call for a hearing.
According to Lord Denning in this case, “If these car-hired rivers were of good character and had for years been coming into the airport under an implied licence to do so, then in that case there was suddenly a prohibition order preventing them from entering, then it would seem only fair that they should be given a hearing and a chance to put their case. But that is not this case. These men have a long record of convictions. They have large fines outstanding. They are continuing to engage in conduct which they must know is unlawful and contrary to the byelaws. Now when the patience of the authority is exhausted, it seems to me that the authority can properly suspend them until further notice, just like the police officer I mentioned. In the circumstances they had no legitimate expectation of being heard. It is not a necessary preliminary that they should have a hearing or be given a further chance to explain. Remembering always this: that it must have been apparent to them why the prohibition was ordered, and equally apparent that, if they had a change of heart and were ready to comply with the rules, no doubt the prohibition would be withdrawn. They could have made representations immediately, if they wished, in answer to the prohibition order. That they did not do.”
“The simple duty of the airport authority was to act fairly and reasonably. It seems to me that it has acted fairly and reasonably. I find nothing wrong in the course which it has taken. I find myself in substantial agreement with the judge, and I would dismiss the appeal.”
In Gamini Dissanayake’s case, Kulatunga J in the majority judgment when considering the question whether such a procedure could be justified had referred to and adopted with approval, the approach Lord Denning had taken in Cinnamond‘s case. That was to justify the common ground that the petitioners in Gamini Dissanayake’s case, had been expelled from the party without informing them of the charge or giving them an opportunity of being heard.
Expulsions in the first Parliament
Chapter XXI (Transitional Provisions) of the 1978 Constitution contains a provision – Article 161 (d) (ii) which was applicable only to the Members of the first Parliament. It is also noted here that the Members of the first Parliament were not elected under PR system, but under the ‘first past the post’ system. Article 161 (d) (ii), was first amended by the Second Amendment to the Constitution, certified on 26.02.1979 and further by the 3rd, 4th, 5th and 6th Amendments to the Constitution.
When considering the aspect of an MP exercising his political conscience and taking political decisions based on an individual basis, one can argue that the provisions of the Article 161 (d) (ii) are relatively more democratic than that of the Article 99(13)(a). Under article 161 (d) (ii) as amended where an MP ceases to be a member of a party, the secretary of such party shall communicate to the Secretary General of Parliament, the fact and date thereof and there is also select committee procedure with voting thereafter in Parliament.
However, no such Select Committee shall be appointed, where the expelled member applies to the Supreme Court for a determination that such expulsion was invalid, unless and until the Supreme Court has determined that such expulsion was valid.
Case law on expulsion of MPs
Given below are several determinations of the Supreme Court on expulsion cases under Article 99 (13) (b) of the Constitution.
Gunawardene and Abeyawardane cases.
The cases of Gunawardene v Nandalal Fernando (taken up with Abeyawardane v Abeyawardane), can be considered as the earliest cases dealing with the so-called expulsion provisions of persons elected to public office consequent to the formulation of the current legal system.
Those two MPs defied the party whip and abstained from voting in favour of the 13th Amendment Bill and Provincial Council Bill at the stage of the 2nd reading in Parliament. After a disciplinary inquiry, the UNP expelled both the Members from the party. Those two MPs argued, in Supreme Court that in abstaining from voting that they exercised the freedom guaranteed to them under the Parliamentary (Powers and Privileges) Act.
Sharvananda CJ giving prominence to the decisions of the political party determined that the expulsions were valid. He had observed that the democracy has assigned to the individual Member the role of a cog in the party wheel and an MP becomes little more than a rubber stamp for its decisions. He had further observed that since the Fundamental Rights were guaranteed against the State they have nothing to do with rights of individuals inter se. It is important to note that this Judgment was delivered before incorporating the 14th Amendment to the Constitution and therefore, Sharvananda CJ had not considered the effects of the said Amendment on the PR system.
Dissanayake v Kaleel and others case
Ministers Gamini Dissanayake and Lalith Athulathmudali led a group of MPs who moved to impeach President Ranasinghe Premadasa. The Disciplinary and Working Committees of the UNP recommended that eight UNP MPs including above two senior members be expelled from the party. They were expelled from the UNP on September 6, 1991. Those MPs petitioned the Supreme Court under Article 99(13)(a) of the Constitution. Other connected cases of the other expelled members were also taken up together.
In his judgment, Justice Mark Fernando analysed the principles of natural justice exhaustively. He noted that it was now settled that it applied to every tribunal or body of persons ‘with authority to adjudicate upon matters involving civil consequences to individuals’. Fernando J., argued that the jurisdiction exercised by the Supreme Court under Article 99 (13) (a) also involved a consideration of the merits of the case. While Fernando J., held that expulsion of 6 MPs was invalid on the grounds of beach of natural justice, Fernando J., reached a different conclusion with regard to the two members of the Cabinet.
He held that the expulsions of these two members were valid because they had deceived the Cabinet by voting in favour of President Premadasa at a Cabinet meeting. They had thus deceived the Cabinet and a hearing in their case would have made no difference.
However, Justice Fernando’s judgment was the minority judgment. Justice Kulatunge, with whom Justice Wadugodapitiya agreed, held that the expulsion of the eight petitioners was valid. Justice Kulatunge held that the petitioners had obtained a hearing before the Supreme Court and this cured the initial lack of a hearing. “The subsequent hearing by this Court is in substance a right to an antecedent hearing’, he said.
Jayathilake and another v Kaleel and others case
Two MPs, A. Jayatilake and S.A Muthubanda challenged their expulsions from the UNP. In this case Petitioner, Jayatilake who admittedly signed the same notice of resolution, claimed that he did so in pursuance of a constitutional right, power or authority which comes under Article 38(2) of the Constitution.
The petitioners were expelled in breach of the rules of natural justice. The party wrote to the petitioners informing them about the expulsion and stating that the petitioners could submit their observations. The petitioners replied answering the allegations against them. The party considered their replies and confirmed the expulsion.
To be continued next week
