KUMARA

Vs.

RETURNING OFFICER, GAMPOLA URBAN COUNCIL AND OTHERS

COURT OF APPEAL
OBEYESEKERE, J. (P/CA)
COREA, J.
CA/WRIT/238/2020
MARCH 9, 2021

Writs of certiorari and prohibition-Articles 66(d), 89(d), 91(1)(a) and 99(13)(a)(b) of the Constitution-Provincial Councils Elections Act, section 63-Local Authorities Elections Ordinance, section 10A - Parliamentary Elections Act, No. 1 of 1981, section 64-Expulsion from a political party-Preliminary objections-Necessary parties-Decisions not amenable to writ jurisdiction

The petitioner is a member of the United National Party (UNP) and successfully contested the Kirapane ward in the Gampola Urban Council area at the local authority elections in 2018. Subsequently, he was elected as the Chairman of the Gampola Urban Council. By a letter dated 28th July 2020, the petitioner was informed by the 2nd respondent, the General Secretary of the UNP, that the working committee of the UNP acting on the recommendation of its disciplinary committee had decided to expel the petitioner from the party as he had tendered his nomination to contest the parliamentary elections held in August 2020 from the Samagi Jana Balawegaya (SJB) political party. Subsequent to this decision, by a letter dated 11th August 2020, the 1st respondent, the returning officer of the Gampola Urban Council, intimated to the petitioner that he had vacated his office as an Urban Council member.

Aggrieved, the petitioner filed this application, seeking inter alia relief by way of writs of certiorari and prohibition to quash the said decisions and to prohibit the 1st respondent from taking further steps on those decisions.

Held:

1. If a necessary party is not made a respondent, the application is liable to be dismissed in limine. However, whether necessary parties have been made respondents is a decision which the court needs to take having due regard to all the surrounding facts and

circumstances of the case. There was substantial compliance by the petitioner and the application is not liable to be dismissed due to the failure to name as respondents all members of the working committee.

2. Membership in a political party and all matters relating to such membership are regulated and governed by the political party's Constitution. The relationship is therefore contractual and will always remain so.

3. The fact that members of a political party may become public representatives performing public functions upon being elected by the public does not alter the contractual relationship that such members have with the party, nor does it give a public element or the statutory flavour needed for the invocation of writ jurisdiction. The writ jurisdiction of the Court of Appeal does not extend to reviewing the decisions of the working committee of the UNP to expel the petitioner.

4. In terms of section 10A(3) of the Local Authorities Elections Ordinance, the returning officer must act on the communication of the secretary of the party and therefore his duty is ministerial in nature and not subject to judicial review.

Cases referred to:

1. Hatton National Bank PLC v. Commissioner General of Labour and others (CA/WRIT/457/2011, CA Minutes of 31.01.2020)
2. Rawaya Publishers and others v. Wijedasa Rajapaksha,Chairman Sri Lanka Press Council and others [2001] 3 Sri LR 213 at 216
3. Wijeratne (Commissioner of Motor Traffic) v. Ven. Dr. Paragoda Wimalawansa Thero and others [2011] 2 Sri LR 258 at 267
4. Arulsamy v. Upcountry Peoples Front and others [2006] 3 Sri LR 386
5. Gnanasambanthan v. Rear Admiral Perera and others [1998] 3 Sri LR 169
6. Dominic v. Minister of Lands and others [2010] 2 Sri LR 398
7. Kiriwanthe and another v. Navaratne and another [1990] 2 Sri LR 393
8. Rex v. Electricity Commissioners, Exp. London Electricity Joint Committee Co [1924] 1 KB 171
9. Ridge v. Baldwin [1964] AC 40

10. O'Reilly v. Mackman [1983] 2 AC 237 at 279
11.