Why The Ilankai Thamil Arasu Katchi (TNA) could not expel Amparai district MP Piyasena

By Ruana Rajepakse

For the past eighteen years parliamentary political parties have had a zero success rate in expelling from their parties Members of Parliament who cross over or fail to obey the party whip when voting in Parliament.

In most of these cases the issue has been procedural irregularity, which means that it is open to the political party concerned to initiate a fresh inquiry, but that has not happened. However, that may be about to change.

MP Piyasena on the campaign trail in 2010

The most recent case is that of Ilankai Tamil Arasu Kadchi (ITAK) MP Perumpulli Hewage Piyasena who was elected to Parliament from the Digamadulla District at the 2010 general election. The ITAK moved to expel him after he broke party discipline and voted with the Government on the Eighteenth Amendment to the Constitution.

Under the proportional representation system, expulsion from the party generally means losing one’s seat and being replaced by another candidate of the same party, as the PR system is supposed to maintain the parliamentary balance of power that was produced at the last election, until the next election.

However this has not happened, apparently due to a long line of decisions by the Supreme Court to which an expelled parliamentarian may turn to for relief under Article 99(13) of the Constitution.

According to Article 99(13)(a) of the Constitution, when a Member of Parliament ceases to be a member of the political party or independent group on whose nomination paper he was elected, his seat shall fall vacant one month after he ceases to be a member of such party or group. The resulting vacancy is filled by the candidate of the same party or group who secured the next highest number of preference votes or, if the list is exhausted, by a member of the same party or group nominated by the party secretary or group leader.

However, a proviso to Article 99(13) lays down one exception to the above rule, namely that if an MP who is expelled by his party or group challenges the validity of his expulsion in the Supreme Court within one month of the expulsion, his seat will fall vacant only if and when the Supreme Court holds the expulsion to be valid.

Much therefore turns on the legal meaning of ‘valid’ in this context. Should the Court look only at the question of whether procedural fairness was followed or is it empowered to look into the merits of the case? Judicial opinions have differed on this issue.

One of the earliest cases arose over the expulsion of Gamini Dissanayake, Lalith Athulathmudali and a number of other dissident UNP MPs who had signed a notice of resolution to impeach President Premadasa.

These MPs had not taken up their grievances within the party before making this move. In fact two of their number had given an affirmative show of hands in an internal party vote of confidence in the President after having signed the impeachment notice, but before it became known. When the Speaker of Parliament who had initially entertained the notice expressed some reluctance to take it further, the dissident MPs, anticipating expulsion, sought an injunction from the District Court which was refused.

Before they could take their case to the Court of Appeal the UNP Working Committee passed a resolution expelling them which was thereafter endorsed by the party’s National Executive Committee. The basis of the disciplinary charge was that the dissidents had not first aired their grievances to the party leadership before going public.

Exercising their right under Article 99(13), the dissidents petitioned the Supreme Court, pleading that the Working Committee had no authority to expel them and also that there had been a breach of the principles of natural justice in that they had not been given a hearing. It was also argued that MPs are entitled to act according to their own judgment and conscience.

The three-judge Bench was agreed on the following points: In terms of the UNP party constitution the Working Committee had the required authority to discipline the petitioners; Sri Lanka’s Constitution "confers primacy to the political party as against the individual MP"; the exercise of the fundamental rights of free speech and expression of the petitioners as MPs was subordinate to the requirements of party discipline; the right to freedom of association enjoyed by the petitioners in joining a political party meant that they accepted reciprocal obligations placing limitations on their freedom of speech; and dissenting opinions should have been the subject of internal discussion before being aired outside.

However, the Court also held that, subject to the above requirements, an MP was not ‘a mere cog in the party machine’ and was entitled to sign a notice of resolution for impeachment which was a parliamentary proceeding.

To the best of this writer’s knowledge, this judgment marked the first and only time that an expulsion has been upheld by any court.

In 1993, MP Tilak Karunaratne was charge-sheeted and expelled from the SLFP for making a statement critical of the party to a newspaper. He had been sent a show cause letter by the party Central Committee and afforded the opportunity of being heard, but had declined, alleging that the Central Committee was not properly constituted due to the failure of the party to hold internal elections for several years. He took his case to the Supreme Court where Justices Dheeraratne and Wijetunga held that the jurisdiction of the Supreme Court under Article 99(13) was an original jurisdiction (as distinct from a procedural review of a decision already made) and some consideration of the merits of the case was required.

As in the previous case, it was recognized that the exercise of a person’s freedom of association to join a political party necessarily meant the acceptance of certain constraints on his freedom of speech. However, unlike in the case of the UNP dissidents, Karunaratne had, ‘taken every possible step’ within party forums to agitate his grievance before going public. Hence his conduct was justified and his expulsion invalid.

However Justice Ramanathan, dissenting, was of the view that consideration of the validity of a decision did not empower the Court to examine the merits of the decision. Noting that the petitioner was offered a hearing of which he declined to avail himself, he held the expulsion to be justified.

Both the above cases were cited by the Supreme Court in the case of Sarath Amunugama and others v. Karu Jayasuriya, Chairman of UNP and others [2000]. The facts of this case bore a similarity to the Gamini Dissanayake case, in that Amunugama and five others who filed parallel cases, had been expelled from the UNP during the presidential election campaign of 1999 when it transpired that they had met President Chandrika Kumaratunga who was campaigning for her second term and assured her of victory in the election.

The General Secretary of the party had written to Amunugama calling for an explanation of his conduct but the latter had replied by asking under what provision of the UNP constitution he was being charged and also asking for further time to reply.

The three judge Bench headed by the then acting Chief Justice Amerasinghe unanimously held that the expulsions were invalid due to lack of procedural propriety. In that situation it was open to the party to hold a fresh inquiry following the principles of natural justice by giving the alleged offenders a fair hearing. However that does not appear to have happened.

The complexity of today’s party affiliations, with various parties contesting as alliances with a collective name different from their party name, has also made expulsion difficult, as highlighted in the case of Basheer Segu Dawood v. Ferial Ashraff and others, [2002]. The petitioner was a member of the Sri Lanka Muslim Congress (SLMC) which, together with another party, formed an alliance known as the National Unity Alliance (NUA). At the parliamentary elections of 2000 the petitioner apparently failed to secure enough preference votes to get elected by vote, but was nominated as a National List MP for the NUA.

Subsequently the leadership of the NUA expelled him and informed this fact to the Secretary-General of Parliament. Segu Dawood challenged his expulsion in the Supreme Court. The Bench comprising Justices Amerasinghe, Wadugodapitiya and Gunasekera J held that as the MP was a member of the SLMC and not NUA, he could not be expelled by the NUA.

This decision is a reminder of the legal problems caused by the Fourteenth Amendment to the Constitution, which introduced the preference vote and the "National List". The latter is a reservation of 29 parliamentary seats to be allocated among the political parties after a general election in proportion to the number of seats they secure at the election, but parties have the option of selecting either from this list or from amongst candidates who failed to secure seats at the polls.

The highest level of judicial intervention in party matters was probably the case of Ameer Ali v. Sri Lanka Muslim Congress [reported 2006]. In that case the SLMC made a proper mess of the expulsion procedure regarding three of its MPs who had joined the Government (the SLMC at that time being in Opposition along with the UNP), and moved to withdraw the expulsion notices while the petitioners’ applications were pending before the Supreme Court.

The five judge Bench presided over by Chief Justice Sarath N. Silva instead chose to give judgment quashing the expulsions. In the course of its judgment the Court made this very broad statement: "The Court may not determine an expulsion to be valid unless there are overwhelming reasons warranting such decision and … such a decision will be competent only in the most exceptional circumstances and in furtherance of the public good…"

Whereas Article 99 of the Constitution empowers the Court to determine whether an expulsion was "valid", the judgment in the Ameer Ali case seems to change that into the power to determine whether the expulsion was for the "public good", thus taking the Court perilously close to the political arena.

In the context of the above decisions, the recent judgment referred to at the beginning of this article, namely Piyasena v. Ilankai Tamil Arasu Kadchi and four others [S.C. Application Special (Expulsion) No.3/2010] has stuck to fairly narrow ground.

The General Secretary of ITAK, Mavai S. Senathirajah, sent MP Piyasena a letter dated 28 November 2010 referring to disciplinary proceedings that had been initiated against him and stated that the "Disciplinary Committee of the ITAK that met today (28.11.2010) has unanimously recommended that you be expelled from the party membership forthwith. Accordingly, you are hereby expelled from the membership of the political party, Ilankai Thamil Arasu Kadchi (ITAK)."

Counsel for ITAK accused the expelled MP of having suppressed material facts from the Court including the fact that at the time of receiving nomination from ITAK the MP had signed a declaration that read as follows:

"I also state that should there arise an instance where I speak, act or do any other act of commission or omission against the collective decision of the Parliamentary Group of the Ilankai Tamil Arasu Katchi at any time, I will forthwith cease to be a member of Parliament and will communicate my resignation as an MP to the Secretary General of Parliament and to the General Secretary, Ilankai Tamil Arasu Katchi. I do hereby authorize the General Secretary, Ilankai Tamil Arasu Katchi to use this document itself as my letter of resignation in the event of the Parliamentary Group determining that I have violated the collective decision of the Parliamentary Group as stipulated above."

Evidence was also led regarding the subsequent conduct of the MP, but the Court comprising Justices Saleem Marsoof, K. Sripavan and Suresh Chandra were in agreement that the relevant question was whether the expulsion was valid at the time it was made.

This question of validity centered on two factors, namely whether the MP was a member of ITAK and, if so, who was the proper authority empowered to expel him from the party.

Despite a feeble attempt to deny actual membership of ITAK, the Court was satisfied on the evidence that the MP was a member of that party which, in his own words, he had joined "just over four and a half years ago".

However on the second question of who was the proper authority to dismiss the MP from the party, the Court found that according to Article 8 of ITAK’s own constitution, it was the "Central Committee" that was empowered to take "disciplinary action against, and expulsion of, members for irregularities, disobedience and lack of loyalty." A person aggrieved by a decision of the Central Committee could submit a "complaint of objection" to the General Working Committee who could review the decision.

However in this case the decision to expel the MP had been made by the "Disciplinary Committee" of the party which was one of several subordinate bodies that could be appointed by the Central Committee. The Court was of the opinion that in order for there to be a valid expulsion the Central Committee should have formally ratified the recommendation of the Disciplinary Committee. In fact, thereafter, such a case could even have been reviewed by the General Working Committee.

Hence, the Court determined that for the purposes of Article 99(13)(a) of the Constitution, the purported expulsion of the Petitioner was invalid.

This writer reliably understands that the ITAK intends taking note of the judgment and holding a fresh inquiry.