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Saturday, 29 September 2001  
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NUA case: Expulsion invalid - SC

by Rodney Martinesz

The Supreme Court yesterday quashed the purported expulsion of Parliamentarian Basheer Segu Dawood from the National Unity Alliance and consequently as MP.

Court also ordered the first respondent Minister Ferial Ashraff to pay the petitioner costs in a sum of Rs. 25,000.

The Bench comprised Justices Dr. A. R. B. Amerasinghe, S. W. B. Wadugodapitiya PC and D. P. S. Gunasekera.

In this case petitioner Basheer Segu Dawood claimed that he was not a member of the National Unity Alliance which was only an amalgam of the Sri Lanka Progressive Front and Sri Lanka Muslim Congress to which he belonged. The NUA had no individual members. Therefore he (petitioner) did not come under the provisions of the Parliament Elections Law which states that a Member of Parliament shall lose his seat if he was expelled from the political party to which he belonged to at the time of nomination. President's Counsel during submissions argued that his client being a member appointed from the National List did not require to be a member from a political party.

President's Counsel Nihal Jayamanne appearing for the first respondent in his arguments contended that if the petitioner maintained that he was not a member of the NUA, then he was precluded from invoking the jurisdiction of the Supreme Court in terms of Article 99(13)(A) of the Constitution. The judgement by Justice Dr. Ranjith Amerasinghe (with which the other judges agreed) inter alia stated that where there is a purported expulsion of a Member of Parliament such member is entitled, under Article 99(13)(A) of the Constitution, to invoke the jurisdiction of this Court to determine whether such expulsion was valid.

In order to invoke the jurisdiction of this court, a petitioner is not required to establish that he was a member of a recognised political party on whose nomination paper his name appeared at the time of becoming such Member of Parliament. Members of parliament who are 'elected' are candidates whose names appear on the nomination papers of recognised political parties.

There is no requirement that such candidates shall also be members of such parties. The petitioner, as we have seen was declared 'elected' under and in terms of Article 99A of the Constitution.

There is no requirement in that Article for a nominee of a recognised political party, to fill a seat due to such political party under an appointment, to be a member of that political party. Neither the provisions of the Constitution nor the provisions of the Parliamentary Elections Act require a person to be a member of a political party to be eligible to be nominated as a candidate for election to Parliament. Of course, political parties and alliances of political parties may have members who can be expelled.

In fact, the new Constitution of the NUA does provide for 'Founder Members', namely, the SLMC and the SLPF and individuals. But as far as the petitioner is concerned he was and remains a member of one political party, namely, the SLMC, and that party alone, although he was a candidate nominated by the NUA for election to Parliament in terms of Article 99A of the Constitution.

"As we have seen, the first respondent in her letter has stated that as the petitioner represents the NUA in Parliament his "dismissal from membership of the NUA" (sic) and his "expulsion from the Party" "will be communicated to the Secretary General of Parliament and the Commissioner of Elections".

The judgement said: Whatever the petitioner or anyone else may have thought about the matter, the petitioner's seat in Parliament would have automatically fallen vacant upon expiration of one month from the purported expulsion from the party and the Secretary General of Parliament would have informed the Commissioner of Elections who would then have taken steps to fill the vacancy. (See Article 99(13)(A) of the Constitution and section 64(1) of the Parliamentary Elections Act No. 1 of 1981).

However, the Constitution states that in the case of the expulsion of a Member of Parliament his seat would not become vacant if prior to the expiration of one month from the expulsion he applies to the Supreme Court and the Court upon such application determines that such expulsion was invalid.

The petitioner, not being a member of the NUA could not be expelled from it. I therefore hold that the purported expulsion of the petitioner, Mr. Basheer Segu Dawood was invalid since it was null and void and no force for avail in law; the purported expulsion by the first respondent is of no value or importance: It amounts to nothing and shall be treated as non-existent for the purposes of Article 99(13)(A) of the Constitution.

The respondents are Mrs. Ferial Ashraff, M. I. M. Rafeek, N. M. Shaheid, Secretary General NUA, Rauf Hakeem, leader SLMC, Dr. A. L. M. Hafrath, Secretary General SLMC, Sri Lanka Muslim Congress, Sri Lanka Progressive Front, National Unity Alliance, Dayananda Dissanayake Commissioner of Elections, Dhammika Kithulagoda, Secretary General of Parliament, Nelson Perera, President SLPF.

K. N. Choksy, PC with Mr. D. S. Wijesinghe, PC, Ronald Perera, A. M. Faaiz and U. Abdul Najeem instructed by Mr. G. G. Arulpragasam appeared for the petitioner.

Nihal Jayamanne, PC with Arnold Nanayakkara and Uditha Collure instructed by M. U. M. Ignullah for the first respondent.

Sanjeewa Jayawardena with Sujeewa Senasinghe, Mariam Mansoor and Shadiya Zanoon instructed by M. C. M. Muneer appeared for the eighth respondent, Romesh de Silva, PC with Harsha Amarasekera instructed by Hussain Ahamed for the fourth respondent, Ikram Mohamed PC with Ian Fernando, Ms. Shyama Fernando, Thissath Wijegunawardena, M. S. A. Wadood and Lal Munasinghe instructed by I. L. M. Azwer for the fifth and sixth respondents, Parakrama Krunaratne with Abdul Kalaam for the seventh and 11th respondents, Wijedasa Rajapakse PC, with M. Nizam Kariappar Kuwera de Soyza for second and eighth respondents, K. Sripavan DSG with Rajiv Gunathilake SC for ninth and 10th respondents.

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