Continued from last week.
According to Justice Padman Surasena, such an attitude on the part of the Petitioner cannot be seen as a genuine request by the Petitioner, the compliance of which by the SLMC should have been necessary as a prerequisite to tendering the Petitioner’s explanation. Therefore, the Supreme Court in Nazeer Ahamed case per Padman Surasena J stated that it was unable to accept that as a ground which would vitiate the decision of the SLMC to expel him from the party.
As the Supreme Court further observed, the Petitioner has not challenged his expulsion before the Supreme Court on the basis that the Leader of the SLMC had no power to suspend him from the High Command position he held. The Petitioner did not seek to challenge P 9 in this proceeding. According to the Supreme Court in Nazeer Ahamed’s case, the jurisdiction conferred by Article 99 (13) (a) of Constitution does not empower this court to engage in such exercise of reviewing a decision to suspend a member from the party.
The jurisdiction under Article 99 (13) (a) is clear in that it only confers jurisdiction on the Supreme Court to decide whether the expulsion of a member from a political party is valid or not. That is what the Petitioner had exactly sought to do in this case. Therefore, the Supreme Court held that the question whether the SLMC leader had power under the SLMC constitution to suspend the petitioner by P9 or the question whether the SLMC should have complied with the Petitioner’s request to let him know the relevant provisions in the party constitution under which the Leader had suspended him from the High Command position, are irrelevant to decide on the validity of the expulsion of the petitioner which only had happened by P 15 which is five months after the date in P 9.
According to the Supreme Court in Nazeer Ahamed’s Case, the above facts showed that the SLMC had tried its best to get an explanation from the petitioner, but the petitioner had not cooperated. In the above circumstances, the Supreme Court stated that it could not hold that the SLMC had breached the Rules of Natural Justice in this as it had granted ample opportunities for the petitioner to tender his written explanation as to why he had violated the party decision taken at the High Command meeting held on 21-11-2021. Accordingly, the Supreme Court held that the absence of a formal inquiry has not vitiated the decision of the SLMC to expel the petitioner under the circumstances of this case.
Is the decision to expel the petitioner justified?
Padman Surasena J in Nazeer Ahamed’s case having considered whether absence of rules of natural justice would vitiate the expulsion decision and then having also held that absence of rules of natural justice by the SLMC in the case did not vitiate the expulsion decision, then proceeded to consider whether the decision of the SLMC to expel petitioner Nazeer Ahamed was justified on his merits. In this regard, the petitioner in his petition, has stated that his expulsion is capricious, manifestly malafide and was motivated purely by the clear resentment towards the petitioner arising inter alia, from the petitioner being appointed as Cabinet Minister.
The Supreme Court also noted that although the petitioner had stated in some instances that his expulsion was done mala fide, the petitioner had not sought to support any of those allegations with evidence. Sanjeeva Jayawardena PC submitted that although it was not only the petitioner who voted in favour of the aforesaid Appropriation Bill despite the party decision to vote against the same, it was only the petitioner who was expelled from the party. On this complaint, the facts also revealed:
“Although members of the party were expelled from the party and called for explanation together with petitioner Nazeer Ahamed, it was in evidence that the other members involved in the voting had complied with the directive of the party and tendered their explanations to the SLMC. This also explains as to why the High Command of the SLMC on 22-04-2022 had unanimously resolved (as per the extract from the minutes produced marked 1R1) to expel the petitioner from the party membership with immediate effect and to suspend those three members from the party membership and to proceed to hold a formal inquiry against them. This goes onto show that those members had an explanation to be tendered and in fact they did so. However, unlike the other three members who had tendered their explanations, the petitioner had determined not to submit himself to the disciplinary proceedings initiated by the party.”
In those circumstances, the Justice stated that he could not resist drawing the inference that the petitioner in this case did not offer any explanation despite repeated requests from the party, solely because he did not have any explanation to be given as to why he had voted in favour of the Appropriation Bill 2022 despite the party decision to vote against P9.
The Supreme Court per Justice Padman Suradena also observed that the whole of the disciplinary proceeding against the petitioner which had led to his expulsion from the party had also come to an end well before the petitioner was appointed as a Cabinet Minister. For those reasons, Padman Surasena J held that he was unable to accept the petitioner’s position that his expulsion was manifestly malafide and was motivated purely by the clear resentment towards the petitioner arising from the appointment of the petitioner as a Cabinet Minister.
The petitioner in his Petition, (at paragraph 55 (a) of the petition) has also stated that his expulsion was contrary to the provisions of Clauses 8.12, 13.1, 13.2, 13.3 and 13.4 of the Constitution of the SLMC. As noted by Justice Padman Surasena, the petitioner had not sought to substantiate these allegations in any other means other than merely stating in his petition and affidavit that his expulsion was contrary to these clauses of the SLMC constitution.
The Justice also observed that the petitioner had thereafter proceeded to vote at the third reading of the Appropriation Bill 2022 on 10-12-2021. According to the Court, the petitioner was silent as to why he had voted at the third reading. He also has not adduced any basis as to why he had voted at the third reading.
The Supreme Court also noted that the petitioner’s expulsion as per P 15 had occurred after the lapse of about five months from the communication of P 9 calling upon the petitioner, to show cause. The SLMC had tried its best to get an explanation from the petitioner, but the petitioner had not cooperated. For the foregoing reasons, the Justice Padman Surasena held that he was unable to accept the petitioner’s position that his expulsion was completely arbitrary, discriminatory and tainted with serious mala fides.
In those circumstances and for the foregoing reasons, the Supreme Court per Padman Surasena held that the decision by the SLMC to expel the petitioner from the party by letter P 15 dated 23.04.2022, was valid in law. Other two judges of the Supreme Court, S. Thurairaja PCJ and Mahinda Samayawardhena J. also agreed. Samayawardhena J. made a separate judgment also concurring with that of Justice Padman Surasena. Accordingly, the Supreme Court dismissed this petition.
Ven. Athuraliye Rathana Thera v Ape Janabala Pakshaya and others
The petitioner (Ven. Athuraliye Rathana Thera) in this case invoked the jurisdiction of the Supreme Court in terms of Article 99 (13) (a) of the Constitution seeking declarations from the Supreme Court that the expulsion of the petitioner from ‘Ape Janabala Pakshaya’, is invalid; that the seat he held in Parliament has not become vacant consequent to such expulsion and that the petitioner has not ceased to be a Member of Parliament. The petitioner was declared elected as a Member of Parliament under Article 99 A of the Constitution and the same was gazetted by the Commissioner General of Elections under an order of the Election Commission on 18-12-2020.
As regards the factual background, the petitioner was the Chairman of the ‘Wijaya Dharani National Council’; a political party, but not a recognised political party under the provisions of the Parliamentary Elections Act No. 1 of 1981, as amended. The petitioner, therefore, had decided to contest the General Elections through the 1st Respondent which is a recognised political party registered with the Election Commission. Accordingly, a Memorandum of Understanding (MOU) was signed between the 1st Respondent, ‘Ape Janabala Pakshaya’ party and ‘Wijaya Dharani National Council’ on 18.03.2020. This was to create a coalition or an alliance between the two political parties and to facilitate ‘Wijaya Dharani National Council’ to contest for the Parliamentary Elections under the 1st Respondent, ‘Ape Janabala Pakshaya’.[P4]. The members of the ‘Wijaya Dharani National Council’ were to remain separate and distinct as opposed to de jure members of the ‘Ape Janabala Pakshaya’ and were not required to obtain the membership of the ‘Ape Janabala Pakshaya’.
At the conclusion of the Parliamentary Election on 05.08.2020, the ‘Ape Janabala Pakshaya’ was informed by the Election Commission that it had secured one National List seat in Parliament, in terms of Article 99 A of the Constitution. The petitioner, albeit, after a brief dispute among the coalition partners, was declared elected as a Member of Parliament under the Constitution provision referred to, by Gazette Notification dated 18.12.2020.
The petitioner, received a letter dated 30.06.2020 under the hand of the 2nd Respondent, (General Secretary Ape Janabala Pakshaya) calling for explanation in relation to five issues enumerated therein, on the basis that the Central Committee of the ‘Ape Janabala Pakshaya’ had decided to hold an inquiry, in view of the several complaints received by the Party[P18].
The petitioner has taken strong objection to the letter on the basis that he could not be subjected to any disciplinary control by the ‘Ape Janabala Pakshaya’ since the constitution of the party has no application to the petitioner as he was not a member of the political party and the constitution of the political party mandates taking disciplinary action against its members only.
The petitioner was sent a second letter [by the 2nd Respondent] dated 5.8.2020 containing eight charges and informing the petitioner that a disciplinary inquiry relating to the charge sheet would be held on August, 20 2020, requiring the petitioner to attend the same. Due to the spread of the Covid-19 pandemic, however, the petitioner was informed that the inquiry will not be held on 20.08.2021.
The petitioner had then been sent a charge sheet again by a letter dated 01.10.2021 by the Chairman of the Disciplinary Committee of ‘Ape Janabala Pakshaya’ containing the same charges as the previous charge sheet dated 05.08.2021 and informing the petitioner that the inquiry into the charges would be held on 14.10.2021
The petitioner contended that he was hospitalised on the 13.10.2021 and as such, he instructed his Attorney, Dinesh Vidanapathirana to inform the Disciplinary Committee of his medical condition and his incapacity to participate in the inquiry. It is alleged that the Attorney concerned was prevented at the gate either to communicate with any official or from informing the medical condition of the petitioner. This was affirmed by the Affidavit of Dinesh Vidanapathirana dated 11.11.2021[P22].
Facts further revealed that the second respondent expelled the petitioner from the party in writing (letter dated 15.10.2021) and also informed the Election Commissioner and the Secretary General of Parliament for suitable action. As later revealed in the case, respondents by way of a motion had informed the court that steps have been taken to withdraw the expulsion decision of Ven. Athuraliye Rathana Thera.
In response to the motion referred to above, the petitioner by way of a motion dated February 21, 2022, brought to the attention of the Supreme Court that the withdrawal of the decision to expel the petitioner is conditional and as such the petitioner wished to pursue this application and invited the Supreme Court to make a final determination with regard to the validity or otherwise of the impugned expulsion.
Even in this backdrop, the President’s Counsel for the petitioner relying on the decision in the case of Ameer Ali and Others V. Sri Lanka Muslim Congress and Others, contended that notwithstanding the withdrawal of the expulsion of the petitioner, the Supreme Court has the jurisdiction to determine the validity of the expulsion.
The President’s Counsel contended that the withdrawal of the expulsion is conditional and restricted only to one of the grounds on which the expulsions have been challenged before the Supreme Court, namely the failure to comply with the principles of natural justice, thus, the Supreme Court should hear and determine the matter in its entirety.
The Supreme Court per Justice Aluwihare PC J, stated that the withdrawal of the expulsion by the 2nd and 3rd respondents on behalf of the 1st respondent was done on 14.2.2022, after one month had elapsed from the date of the impugned expulsion. Thus, the withdrawal [of the expulsion] was done at a time when the Supreme Court was seized with the matter and in terms of the proviso to the Constitutional provision referred to, the seat will become vacant only if the Supreme Court makes a determination that the expulsion is valid. Accordingly, the withdrawal by the respondents does not per se result in a position where the expulsion becomes invalid and the petitioner is correct in requesting a determination to be made by the Court as to the validity of the expulsion.
As further stated by the Supreme Court, in this case, as referred to earlier Clauses 5, 6 and 7 of the MOU [P4] entered into between the petitioner’s party; ‘Wijaya Dharani National Council’ and the political party of the Respondents, ‘Ape Janabala Pakshaya’ clearly spells out that the members of the ‘Wijaya Dharani National Council including the Petitioner shall not be subject to the rules and regulations of the ‘Ape Janabala Pakshaya’ and such members cannot be called upon for any disciplinary inquiry. In the circumstances aforesaid, the Supreme Court submitted that the office bearers of the ‘Ape Janabala Pakshaya’ cannot influence, intervene, or object to the political decisions taken by the ‘Ape Janabala Pakshaya’ nor is there any provision to subject the petitioner to disciplinary control of ‘Ape Janabala Pakshaya’
In this regard the Supreme Court referred to Perumpulli Hewage Piyasena, v. Ilankai Tamil Arasu Kadchi where the Supreme Court per Justice Marsoof stated that in the first place it is necessary to consider whether the petitioner is amenable to the discretionary control of the ITAK. The Supreme Court also referred to Ameer Ali and Others vs. Sri Lanka Muslim Congress and Others, where S.N Silva J observed that the Supreme Court has to examine the requisite competence of the expelling authority and the nature of the decision making powers including that of the domestic inquiry to be satisfied as to its bonafides and the compliance with the principles of natural justice.
In the circumstances, the Supreme Court per Aluwihare PC J, with Murdu N.B. Fernando, PC, J and Janak De Silva, J agreeing held that the decision to expel the petitioner from the membership of ‘Ape Janabala Pakshaya on a purported decision of the Disciplinary Committee by the letter dated 15.10.2021 marked ‘P23’, is ex-facie illegal as it has not been made by the appropriate disciplinary authority in terms of the MoU. For all the aforesaid reasons, the Supreme Court determined that for the purposes of Article 99(13) (a) of the Constitution, the purported expulsion of the petitioner, Ven. Athuraliye Rathana Thera was invalid. In all the circumstances of the case, the Supreme Court made no order as to costs.
Balancing party allegiance and expulsion of MPs
Since most times when an MP crosses over to the government party or joins with another political party, the MP will be expelled from his original party.
While there is an individual responsibility of MPs to defend and safeguard the interests of their constituents, there is also an important duty cast upon the political parties to follow internally democratic procedures, enabling the MPs to express their views freely first within the party and then inside the House.
It would not be correct for the political party to expel their members arbitrarily posing a great threat to the mandate given by the people and to democracy. Having extremely rigid party discipline in party constitution would certainly undermine the individual conscience of the MP and the party democracy.
This fact also obstructs the MPs genuine efforts in striking a balance between conscience of MPs and party loyalty. Since conscience of MP changing, the party loyalty is a also a valid ground in legal proceedings, conscience of MP should not be tainted by corrupt mind and seeking personal gains, in view of the broader public good.
The point where the expulsion of an MP from the party comes to infringe the individual rights of a Member has been clearly drawn by the Inter Parliamentary Union (IPU) Governing Council in test cases before its Committee on the Human Rights of the Parliamentarians. First any expulsion should accord with a party’s internal rules guaranteeing due process, including the right of a member to defend him or herself. Secondly, any expulsion should not result automatically in the member’s loss of his or her Parliamentary seat or curtailment of its duration, since this would undermine the member’s right to freedom of expression. As the IPU reiterated, a member’s disqualification from Parliament requires a decision by Parliament as a whole, and should only follow conviction for a criminal offence, not loss of party membership.
Attempts have been made in striking such a balance. One instance is the 19th Amendment Bill in Sri Lanka that was proposed. A unique but restricted philosophy was introduced by Clause 6 of the 19th Amendment to the Constitution. Clause 6 of the proposed 19th Amendment reads
“A Member of Parliament who speaks or votes or abstains from voting on any amendment to the Constitution contained herein, according to his own belief or conscience or free will, shall not be expelled or suspended from membership or be subjected to any disciplinary action by recognized political party or the independent group as the case may be on whose relevant nomination paper his name appeared at the time of his becoming such Member of Parliament for having so spoken or voted or abstained from voting, and the provisions of sub- paragraph (a) paragraph (13) of Article 99 shall not apply to such Member and the seat of such Member in Parliament shall not thereby become vacant.’
It was unique because the own belief or conscience or free will of an MP has been expressly recognised by the proposed Amendment. However, that recognition has been highly restricted only to an issue of speaking or voting at the time of amending the Constitution as mentioned therein.
The Supreme Court determined that the 19th Amendment Bill which also included provisions for dissolution of Parliament was unconstitutional and required to be passed by a special majority and be approved by the people at a Referendum.
However, the Court did not comment on the political philosophy behind the Clause 6 of the draft Bill. After the Supreme Court determination, the 19th Amendment Bill was neither submitted to Parliament for special majority approval nor to people for approval at a Referendum.
It is our view that expulsion of an MP from his political party should not tantamount to a vacation of his or her seat in Parliament. However, it needs a proviso, which should prevent an MP securing his seat in the Parliament in an event he decides to dissent merely for his own personal benefit and against the voters’ will.
Concluded
