TISSA ATTANAYAKE
VS.
UNITED NATIONAL PARTY AND OTHERS

SUPREME COURT
ROHINI MARASINGHE, J
B. ALUWIHARE, PC J
PRIYANTHA JAYAWARDENA, PC J
SC/EXPULSION/04/15
APRIL 1.2.2015

Expulsion- Article 99 (13) (a) of Constitution- Audi alteram partem- Imparative-Disciplinary Committee- UNP Constitution- Working Committee- Open and shut case- Unfairness- Urgency- Sui generis-Invalid for want of procedural impropriety ? unequal treatment-meted out to equals?

Petitioner is a Member of Parliament and one time General Secretary of the UNP The Working Committee of the UNP resolved to field a Common Candidate namely Maithripala Sirisena to contest the Presidential Elections of 2015. Petitioner resigned from the post of General Secretary on 08.12.2014 by letter addressed to the 2nd Respondent. He gave his reasons for resigning and stated ho is not supporting the Common Candidate Petitioner having resigned decided to support the opposing Candidate Mr.Mahinda Rajapakse Petitioner also expressed displeasure for not supporting the Common Candidate, and thereby supported the candidature of Mr Mahinda Rajapakse. In this back drop the only communication the Petitioner received from the UNP after resignation on 8th December 2014 was the letter of expulsion dated 17th February 2015.

No explanation was called from the Petitioner, the charge sheet was served and no inquiry was held giving the Petitioner an opportunity to defend himself prior to expulsion.

Held:

1. In my view for the sake of preserving public confidence it is important to adhere to rules of natural justice in these matters. We have gone through the facts contained in the newspapers which are annexed as R3 to R34.

The Counsel for the Petitioner submitted that some of the statements in those reports are being denied by the Petitioner. In those circumstances a fair hearing would have been useful to ascertain the truth. His conduct may have been wrongly motivated but yet he may have an explanation to offer.

2. Admittedly, the opportunity of a fair hearing may be limited in the circumstances. For instance the time for responding to a charge sheet or making submissions may be reduced Yet, the person is entitled to be told what he is charged with and afforded some opportunity of explaining himself. The Petitioner is a member of Parliament and expulsion could lead to losing his seat. The very gravity of the matter required that at least a limited hearing ought to be given to the Petitioner.

3. Taking these matters into consideration I am of the view that there was no justification for the failure of the Respondents to observe the principles of natural justice arc grant the petitioner a hearing before he was expelled.

It is also relevant to mention that some other members, who had breached the Party Constitution during the same period as the Petitioner had, have been dealt differently by the Working Committee. Those members have been directed to show cause against the expulsion. Those letters have been filed in this application in order to show that the Petitioner had been treated differently to the other members. (P15 (a), P15 (b) and P15 (c)). This points a finger at unequal treatment meted cut to equals. This affects the requirement of Natural Justice most adversely.

AN APPLICATION under Article 99 (13) (a) of the Constitution.

Cases referred to:

1. Amir Ali and Others Vs. Sri Lanka Muslim Congress 2006 (1) SLR p. 190,201
2. R.V. Secretary of Environment, Brent London (1983) 3 All ER 321, 354
3. Gamini Dissanayake Vs. M.C.M. Kaleel 1993 (2) SLR p. 135, 234
4. John Vs. Rees (1970) Ch.D,345,382,402

5. General Medical Council Vs. Spackman (1943) A.C. 627, 644
6. Ramamoorthy and Rameswaran Vs. Douglas Devananda (1998) 2 SLR p. 278, 285
7. R.V. Thames Magistrate Court, ex p Polemis (1974) 1 WLR 1371, 1375
8. Maxwell Vs. Department of Trade (1974) 1 QB 523, 540
9. Lloyd Vs. Mcmahn (1987) A.C. 625 702
10. R.V