PIYASENA
VS.
ILANKAI THAMIL ARASU KADCHI AND OTHERS

SUPREME COURT
SALEEM MARSOOF, P. C. J.
SRIPAVAN, J.AND
SURESH CHANDRA, J.
S.C.APPLICATION (SPECIAL) EXPULSION NO. 03/2010
JANUARY 18TH, 2011
JANUARY 24TH, 2011
JANUARY 25TH, 2011

Expulsion of a Member from a recognised political party - Constitution - Article 99 (13) (a) - Validity of expulsion - Injunctive and discretionary relief- Duty of full disclosure of all material facts - Provincial Councils Act 2 of 1988.

The Petitioner was elected to the Parliament as a member of the political party, "Ilankai Thamil Arasu Kadchi" (ITAK). He was expelled from the said party on a decision taken by the Disciplinary Committee of the ITAK. The Petitioner prayed for a declaration that the said decision to expel him from the ITAK as
communicated by 'P 12' is invalid and of no force or avail in law and for a determination that the said expulsion was invalid. He also prayed for a declaration that the Petitioner has not ceased to be a Member of Parliament and that he continues to be and remains a Member of Parliament.

A preliminary objection was taken at the outset to the maintainability of the application on the basis that the Petitioner was not entitled to the relief prayed for due to the alleged suppressions and misreprssentations of material facts contained in the petition and his alleged failure to discharge the duty of full disclosure of all material facts imposed on any person invoking the jurisdiction of Court for the grant of injunctive and discretionary relief.

Held:

(1) The jurisdiction of the Supreme Court conferred by Article 99 (13) (a) of the Constitution is sui generis, original and exclusive, and does not confer any discretion to the Supreme Court to dismiss in limine an application filed there under merely on the ground of suppression or misrepresentation of material facts, as in cases involving injunctive relief or applications for prerogative writs.

The proviso to Article 99 (13) (a) is neither injunctive nor discretionary, and does not necessitate any inquiry into the conduct of the person

invoking the said jurisdiction. The objective of Article 99 (13) (a) of the Constitution is to provide the expelled Member a meaningful and effective remedy against arbitrary removal.

Per Saleem Marsoof, P. C. J.-

"I am therefore of the opinion that even in a case where there is cogent evidence to establish that an expelled Member of Parliament did not come to Court with dean hands, if this Court finds that the purported expulsion is invalid, "his seat shall not be vacant" and he will continue to hold office, and this Court does not have the discretion to make a contrary determination on the sole ground of suppression or misrepresentation of material facts, or dismiss the application in limine. I am of the opinion that it is therefore not necessary to make any findings in regard to the question whether the Petitioner has suppressed or misrepresented any material facts in his Petition or in the course of hearing, and accordingly, the preliminary objection raised by the 3rd Respondent has to be overruled.

(2) The Petitioner cannot in these proceedings take up an Inconsistent stand and assert that he is not a de jure member of ITAK and is therefore not bound by the provisions of its Constitution and the disciplinary procedure laid down in that Constitution. The application of the Petitioner has to be considered on the basis that the Petitioner is a member of the ITAK.

(3) It is the Central Committee of the ITAK that has disciplinary authority over the Petitioner, and it is that Committee, which has in fact initiated disciplinary process by appointing Disciplinary Committee. It is not possible for only four members of the Committee to arrive at findings, and the purported report of the Committee marked "R6", which does not bear all the signatures of its members, is incomplete and cannot be acted upon.

(4) The decision to expel t