The decision made by the Supreme Court regarding the suspension of party membership of Nazeer Ahamed, MP of the Sri Lanka Muslim Congress, has caused a riot among several political parties. Several Members of Parliament have changed their party affiliations, including the United People’s Front representing the Parliament, the Sri Lanka Freedom Party, Samagi Jana Balawegaya, and the party of Rishad Bathuideen. Most of them are raising the question of whether their parliamentary positions can be abolished in this manner.
Several basic criteria should be fulfilled if a Member of Parliament (MP) is to be removed as per the Constitution and the Parliament Elections Act. Initially, a strong, precise provision is needed to implement regarding the party members through the relevant constitution of the party. Secondly, the question arises whether they are entitled to formal disciplinary action as per such provisions and as per the principles of natural justice (the opportunity to provide excuses).
The Sri Lanka Muslim Congress is the primary party to formally register in its Constitution the way to act regarding their own party members. As per the Constitution of the United National Party, suspension of party membership can be made even partially. The provisions of the Sri Lanka People’s Front are not as strong as those of the Muslim Congress. The Constitution of the Samagi Jana Balawegaya almost has no such formal provision, with only 32 pages covering its constitution. The Constitution of the Janatha Vimukthi Peramuna provides an opportunity to take strict actions regarding membership. Since, at the moment, the Constitution of the Sri Lanka Freedom Party is under scrutiny by the Court, it is difficult for the party to remove their members.
Legal Provisions and Historical Context
The 62-page Court decision for Nazeer Ahamed reveals the fact that if any member of Parliament has taken formal steps, removal of him would not be difficult. At the moment, 9 or nearly so MPs are subject to disciplinary investigations and trial. The question is whether it is possible to remove all of them from the parties following Nazeer Ahamed, i.e., to remove them from the Parliament.
This question has two answers: ‘yes’ and ‘no’. This is a subject-based analysis of the same.
What is the legal provision for removal? As per Article 99(13) of the Constitution of 1978, actions that should be taken are indicated as “in case of termination ………by resignation or expulsion or otherwise.” This is the only provision to remove a member of Parliament.
The practical application of Article 99(13) spans two generations. Firstly, the generation before 1992 when political parties succeeded in depriving MPs who violated party discipline.
Chandrakumara Wijegunawardene (Kamburupitiya) and the current Speaker of the Parliament, Mahinda Yapa Abeywardana, were expelled from the United National Party for voting against the 13th Amendment to the Constitution (Provincial Councils). Then, they lost their seats and were defeated in cases (SC 50/87Spl and SC 51/87 Spl) against the decisions of the party leader, J.R. Jayewardene.
The 14th Amendment to the Constitution, introduced in 1988, replaced the solitary electoral division system with a district voting system. This raised theoretical questions, such as whether an MP not belonging to the party should obey the party leader’s orders and whether public representatives have the opportunity to vote conscientiously, which emerged after the 14th Amendment to the Constitution.
Expulsion of Ministers and MPs
Ministers, namely Lalith Athulathmudali, Gamini Dissanayake, and G.M. Premachandra, and 08 MPs, namely Lakshman Senevirathne, Chandra Gankanda, Premarathne Gunasekara, Samaraweera Weerawanni, and Wincent Perera, who signed the impeachment against President R. Premadasa, were expelled from the United National Party as per the decision of the UNP Working Committee on 06.09.1991. Cases (Dissanayake vs. Kaleel SC (Special) Nos. from 4 to 11/91) against the expulsion from the party were heard in District Courts and even in the Supreme Court. That case was an encyclopedia regarding the legal conditions of party expulsion. The decision given by the Judges, namely Fernando, Wadugodapitiya, and Kulathunga, contains 248 pages.
The foundation of the Gamini case was that “Expulsion from the party cannot be done stubbornly. Justice should prevail. MPs should be given the opportunity to present their facts. A charge sheet should be issued. Opportunity should be given to provide answers, obtain legal support, and clarify.”
Since the number of seats received by the party would be determined based on the number of votes received in proportional representation, the logic on the other side was that the seat of the MP should be dismissed if they lost party membership.
The Lalith–Gamini team was defeated in the case since the lawyers of the UNP were able to certify that “actions were taken according to the law of natural justice.”
The real story is that even though records existed to prove that summon letters for disciplinary actions were sent by registered post, those letters were not received by the MPs. (Misplacing letters in the mail was a mission of then General Secretary Sirisena Cooray)
Expulsion and Legal Challenges: Pre-1994
Ariyarathne Jayathilake and A.S. Muthubanda, who removed their signatures after signing an impeachment against R. Premadasa, were also expelled from the party. The plaintiff’s legal team included Lalith Athulathmudali, who filed a case (Muthubanda against Kaleel SC 2/92 Spl) before the Supreme Court challenging the expulsion. The petition of Jayathilake and Muthubanda was dismissed. The same fate was inherited by those who continued to challenge and those who knelt in between.
During the same time (1993), a team including Jinadasa Niyathapala, Pradeep Hapangama, Thilak Karunarathne, Mervin Silva, and Hemakumara Nanayakkara of Sri Lanka’s Freedom Party, along with several MPs, acted in defiance of the party’s leadership. Anura Bandaranaike, heir to the throne of SLFP, united with UNP and bore the designation of the Minister of Higher Education and National Integration. SLFP expelled these MPs, but the Supreme Court secured their seats due to deficiencies in the expulsion procedure. The SLFP case in 1993 was Bandaragama SLFP organizer and Thilak Karunarathne against Sirima Bandaranaike. On January 24, 1993, The Island and Lakdiwa as well as BBC interviews, accused SLFP of breach of discipline. Thilak Karunarathne’s attempt on May 31, 1993, to obtain a restraining order from the District Court was not successful. However, Thilak’s case marked the beginning of the common practice of obtaining an interim restraining order against disciplinary trials. Due to the improper procedure in taking disciplinary actions, the Court ruled that Thilak Karunarathne’s expulsion was illegal.
Therefore, it is evident that the ability or inability to remove MPs depends on whether or not the steps of natural justice are followed, even before 1994.
In 1999, a team of Dr. Wimal Wickramasinghe and Ven. Elle Gunawansha planned to contest the election separately as “Purawesi Peramuna” with the intervention of then General Secretary of UNP, Sirisena Cooray. However, amidst the discussions, 35 people, including Sarath Amunugama, Nanda Mathew, Wijepala Mendis, Choola Bandara, and Stanley Kalpage, from the same team, united with the ruling party, stating that “it is for the establishment of a National Government.”
The Supreme Court (SC SPL. (E) NO. 4/99) decided in November 1999 that the expulsion of five MPs of UNP from the party due to ‘not giving reasons for the expulsion from the party and unavailability of a charge sheet’ is illegal. After the case of Sarath Amunugama and many others against Karu Jayasuriya, the political parties’ efforts to remove UNP Members of Parliament from their parties and remove their seats were successful through the decision of the case of Nazeer Ahamed.
Expulsion of a Member of Parliament: The Process
The method for expelling a Member of Parliament involves several steps. First, the relevant political party’s General Secretary must inform the Election Commission of the decision to expel a member. Subsequently, the Election Commission will notify the concerned MP in writing. This notification is crucial as it signifies the MP’s loss of party membership. However, the Election Commission will not take immediate action to expel the MP; a waiting period of 21 days is observed. This grace period allows the MP an opportunity to initiate proceedings in the District Court, contesting the party’s decision based on legal grounds. If an MP fails to file a case within this 21-day window, and no attempt is made to obtain an interim restraining order against the Election Commission, the MP will be expelled.
If an MP successfully secures an interim restraining order from the District Court, they can protect their parliamentary seat.
After the JVP’s second uprising, JVP MP Nihal Galappaththi, who contested the election under the name of Sri Lanka Pragathisheeli Peramuna, was not expelled by the Party Secretary Ariya Bulegoda. However, he was expelled under the charge of ‘non-payment of party membership fees. In the case of Galappaththi vs. Bulegoda (1997 1 SLR 393), filed in the Supreme Court when Galappaththi faced the prospect of losing his MP position, it was determined that it was illegal not to conduct a formal investigation following the principles of natural justice and not giving the petitioner an opportunity to present the allegations.
Seven UNP MPs voted in favour of the Mahinda Rajapaksa Government to grant a 2/3 majority for the 18th Amendment to the Constitution, which enhanced the President’s powers. These MPs were Lakshman Senevirathne – Badulla, Earl Gunasekara – Polonnaruwa, Manusha Nanayakkara – Galle, Upeksha Swarnamali – Gampaha, Nimal Wijesinghe – Kurunegala, and Abdul Cader – Kandy. Despite the UNP banning their party membership, they were unable to remove these MPs from their parliamentary positions.
Eight MPs of the Sri Lanka Muslim Congress, including Rauf Hakeem, who contested under the nominal party called the United National Front (real name is United National Party), also voted in favour of the 18th Amendment. At that time, the UNP did not take any disciplinary action against any of them.
Tamil National Alliance MP of Digamadulla District P.H. Piyasena also voted in favour of the 18th Amendment. He was expelled from the membership of the Ilankai Tamil Arasu Kadchi (ITAK) on November 28, 2010, for acting against party discipline. Piyasena filed a case in the Jaffna District Court (DC Jaffna case No. 38/2010 (Misc)) against his expulsion from the party, but he could not obtain a restraining order. Piyasena submitted the SC Application Special [Expulsion] No. 03/2010) petition to the Supreme Court against his expulsion from the party, and he retained his MP position as the Supreme Court ruled that the Tamil National Alliance’s ban on Piyasena’s party membership was illegal.
The expulsion of Amir Ali, Rishad Badurdeen, and Najim A Majeed of the Sri Lanka Muslim Congress (SLMC) on April 4, 2005, is a prominent example of how the principles of natural justice can impact the party expulsion of an MP. These MPs sent a letter to the party, criticizing Muslim Congress Leader Rauf Hakeem. Hakeem, unable to tolerate the criticism, responded by saying, “Finally, I would like to remind you that the Muslims of the Northeast will not pardon you for the treacherous act committed, and the Party will take appropriate action against you in due course.”
Shirani Bandaranayake, who opposed the party’s expulsion of Rishad and the group, wrote the judgment. She stated that by saying “You are wrong. Even the Muslim community would not pardon,” even before a disciplinary inquiry was held, a prior conclusion of guilt had been reached regarding the relevant MPs. The Supreme Court heard all three cases (02/2005, 03/2005, 04/2005) together, and the five-member bench, led by Sarath N. Silva, determined on July 1, 2005, that the party ban of Ali, Rishad, and Majeed was not legal. According to the disciplinary procedure of the Muslim Congress, only the supreme body of the party has the power to remove a party member. The leading argument in that case was that the party leader acted with a prior notion of guilt. This time, the Muslim Congress was able to correct what had gone wrong in the Naseer Ahmed judgment, and they prevailed in the eyes of the law.
Formation of All Ceylon Muslim Congress
Following the fragmentation of the Muslim Congress, the All Ceylon Muslim Congress, previously introduced as the ‘Future Rishad’s Party’ in the political world, was officially formed as a political movement led by lawyer Hamid, who served as its General Secretary. Rishad Badurdeen, Amir Ali, and others who were not yet members invited to join the new party’s conference held in Puttalam. At the time, they had not paid for party membership.
In this conference, Rishad Badurdeen was proposed as the party leader, and Amir Ali was proposed as the party president. Rauf Hakeem asked for explanations from the MPs who were already estranged from the party for forming another political party while still holding membership in the Muslim Congress. Ameer Ali and Rishard went to Court, and the General Secretary of the Party, lawyer Hameed, gave a concise response. He argued that “Rishad and Amir Ali were proposed for the posts of the party. Party membership applications were handed over to them.
They could only assume these positions if they had party membership. However, since they were denied membership, they did not receive or accept the positions.” The Court accepted Hameed’s affidavit, preventing the Muslim Congress leader from expelling, removing, or suspending the membership of Rishad Badurdeen from the party. This marked a significant legal challenge against Rauf Hakeem.
Nandimitra Ekanayake, a prominent politician in Matale, initially contested Parliamentary Elections under the UNP banner but later switched parties to join the Podujana Peramuna. He subsequently secured a seat as a UNP MP when the UNP’s Alick Aluvihare passed away in May 2009, elevating him from the waiting list. The UNP filed a case against this, asserting that Nandimitra, who was in the Podujana Peramuna at the time, took the MP position on the UNP list without being given an opportunity to excuse himself. Despite sending a summons letter by registered post, Nandimitra was able to convince the Court that he hadn’t received it. As a result, he was sworn in as an MP from the opposition but joined the Government on the same day. This case serves as a notable example of party switching and related legal matters.
-Rajith Keerthi Tennakoon-