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| Friday, 4 February 2005 |
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| Rohitha Bogollagama expulsion case : Does, going to Working Committee supersede coming to courts - Judge The Supreme Court Judge Justice Nihal Jayasinghe yesterday queried whether it mattered if Rohitha Bogollagama went before the UNP Working Committee to present himself before an inquiry, since he had come before the Courts in terms of the Constitution of the land to seek redress for depriving him of his right of Audi Alteram Partem. The Judge made this query when the case filed before the Supreme Court by Bogollagama challenging his expulsion from the UNP was taken up for hearing on its fourth consecutive day. The Bench comprised Justices Nihal Jayasinghe, Nimal Dissanayake and Raja Fernando. The petitioner stated that he was sworn in as the Minister of Advanced Technology and National Enterprise Development on November 18, on the President's invitation. The petitioner stated that he had taken over the Cabinet portfolio whilst remaining a member of the UNP. He stated that his expulsion was bad in law and a nullity. The petitioner cited the UNP, its Leader Ranil Wickremesinghe, Chairman Malik Samarawickrma, General Secretary N. V. K. K. Weragoda, Parliamentary General Secretary Priyani Wijesekera and Elections Commissioner Dayananda Dissanayake as the respondents. The petitioner sought to determine the purported expulsion of the petitioner as invalid. He also sought a declaration that the petitioner had not ceased to be a Member of Parliament and a declaration that the petitioner could continue to be a Member of Parliament. President's Counsel K. N. Choksy continuing his submissions stated that Bogollagama obtained membership of the UNP after having met the party leadership and the hierarchy of the UNP. But he arbitrarily crossed the floor of the House and joined the Government. He was required to obtain the approval of the party high command before he joined the Government. It is wrong to go against the party constitution. President's Counsel Ben Eliyathamby submitted that according to petitioner, he was deprived of his right of Audi Alteram Partem. If so he had enough time to inform of his acceptance of Ministerial office but he had failed to do so. Justice Nihal Jayasinghe: Has the party inquired about this from him? Ben Eliyathamby PC: No, the petitioner is the person who should come before the Working Committee. Mahanayakes and others of the Working Committee have spoken in favour of the petitioner although he has not come before the Working Committee. There is nothing to prevent him of asking for such approval and the petitioner himself states that there was nothing preventing him from asking for approval. Justice Nihal Jayasinghe: Should he have gone before the Working Committee? He has come before the law in accordance with the Constitution, for depriving him of his right of Audi Alteram Partem. Counsel: But clearly he has violated the party constitution. He had enough opportunity for explanation but he did not do so. He himself has deprived of his right of Audi Alteram Partem. President's Counsel D. S. Wijesinghe appearing for the petitioner stated the fact that Bogollagama was expelled from the UNP on November 18 and was communicated to him on December 2. The petitioner was also sworn in as the Minister on November 18. According to the law the case has to be filed within 30 days. But two weeks had already lapsed when he was informed of his expulsion and this gave the petitioner insufficient time to defend himself. Counsel D. S. Wijesinghe PC submitted that Bogollagama has no opportunity of going before the Working Committee of the UNP. Respondents have noticed him of his expulsion from his party. He is no more a member of the UNP. Why should he go before the Working Committee since he has not done any thing against the party. Hence he pleaded to Court to declare the letter of expulsion of Bogollagama by the General Secretary of the UNP a nullity. D. S. Wijesinghe PC, with Ikram Mohamed PC, Wijedasa Rajapakse PC, and Kapila Liyanagamage instructed by Sudath Perera Associates appeared for the petitioner. K. N. Choksy PC, with L. C. Seneviratne PC, Daya Pelpola, Ms Kishanee Wijethunga appeared for the first and fourth respondents, and General Secretary of UNP instructed by Samararatne Associates. Ben Eliyathamby PC, S. J. Mohideen, and Ronald Perera appeared for the second and third respondents Ranil Wickremesinghe and Malik Samarawickrama instructed by J. J. Rajakaruna. |
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