Freedom of Conscience and the MP

Methsiri Cooray in this book succinctly analyses the law relating to the application of Article 99(13)(a) of the 1978 Constitution of Sri Lanka. The proviso to Article 99(13)(a) provides that in the case of an expulsion, a Member of Parliament may apply to the Supreme Court within a period of one month by petition in writing to have such expulsion determined as invalid. In the event of the Supreme Court deciding that such expulsion in invalid the seat of such Member of Parliament shall not become vacant.

In the introduction the author discusses the Free Mandate and the Imperative Mandate Theories of representation. In the Free Mandate Theory the freedom of conscience of an elected Member of Parliament to exercise a free mandate in the national interest has been upheld. The relevant constitutional provisions, including transitional provisions with their amendments have been enumerated and discussed.

Supreme Court

Case Law comprising 22 cases have been analyzed in chronological order. From the first two cases of Wijaya Gunawardena v Nandalal Fernando (SC 50/87Spl) and Yapa Abeywardena v Harsha Abeywardena (SC 51/87 Spl) which were heard together up to the case of Muthu Banda v Kaleel (SC 2/92 Spl) the expulsions were held to be valid. The first case in the series where the Court held that the expulsion was invalid was that of Thilak Karunaratne v Sirimavo Bandaranaike and 36 Others SC 3/93 Spl.

The writer of the present review was then apprenticing in the Chambers of D S Wijesinghe PC, who was the Senior Counsel for the Petitioner Thilak Karunaratne. Hence his dissertation for the Bachelor's Degree in Law was written on that case. H L De Silva PC appeared as the Senior Counsel for the Respondents Sirimavo Bandaranaike, the Sri Lanka Freedom Party and others. Dheeraratne J delivering the judgement of the Supreme Court quoted the dicta of Fernando J in Dissanayake v Kaleel with approval to state: 'Our own jurisdiction under Article 99(13)(a) is not a form of judicial review, or even of appeal, but rather an original jurisdiction analogous to an action for declaration though it is clearly not a rehearing. Are we concerned only with the decision-making process, or must we also look at the decision itself? Article 99(13)(a) required us to decide whether the expulsion was valid or invalid; some consideration of the merits is obviously required.'

Legal luminary

It was also held that a Member of Parliament is not a mere lifeless cog in the wheel of the party machine nor a mere rubber stamp bereft of any independence of action. Ramanathan J delivered a dissenting judgement. After discussing the judgement in Thilak Karunaratne's case under the caption 'Party Discipline and the Voice of Conscience' published in the Sunday Observer of September 26, 1993 Lakshman Kadiragamar PC an undisputed legal luminary of our time concluded: 'The dissents of today can well be the accepted law of tomorrow.'

They show that Courts can never be taken for granted by any Person of Party, however powerful and influential. If the Court always speaks with one voice on complex matters on which different points must necessarily exist, the apprehension might arise in the public mind that he who pays the piper calls the tune.

The recent expulsion cases should help considerably to allay any such apprehension. In the more recent cases of Rohitha Bogollagama v UNP, Ameer Ali v SLMC, Keheliya Rambukwella v UNP, Mahinda Samarasinghe v UNP the Supreme Court held that the expulsions were invalid.

The author discusses the role of the Parliament and a Member of Parliament in a liberal democracy and the Concept of Conscience of a MP. The argument that an elected representative should be able to exercise his or her own conscience as a MP in the national interest has been upheld by the author in his work. The author quotes John Bright (1888) with approval as 'I must follow my own judgement and conscience and not the voice of my party leaders.'

The Parliamentary experiences in Britain, India and Sri Lanka have been discussed succinctly by the author. The author speaks of the attitude of respect for the individual conscience of a MP advocated by John Stuart Mill in the 18th Century. Mill stated: 'If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had power, would be justified in silencing mankind.' Dheeraratne J in Thilak Karunaratne's case quoted the said statement with approval and said: 'Passage of time has not staled the force of John Stuart Mill's statement.'

Freedom of conscience

The author is critical of the recent decisions of the Supreme Court and states that 'party dominance vis-a-vis the Freedom of Conscience is not naturally a corollary of proportional representation in the light of experience in other liberal democracies.' The author concludes that 'in the cases of Rohitha Bogollagama v UNP, Keheliya Rambukwella v UNP, Mahinda Samarasinghe v UNP the Court has impliedly unconsciously upheld the freedom of conscience.'

The book while ending with copious end notes containing references to materials and cases discussed in the text, commences with a valuable Foreword written by Dr Sunil S A Cooray which briefly analyzes its contents. The Preface reveals that the book is based on the contents of a lecture delivered by the author to the Royal Asiatic Society of Sri Lanka in 2008.

The work of the author would undoubtedly be useful to legal practioners and students of the law who wish to study the law relating to Article 99(13)(a) of the Constitution. Parliamentarians will also benefit from the study of its contents. I commend the author for the able exposition of the law relating to the subject discussed in spite of his busy schedule on the eve of his departure to the Netherlands to take up his appointment as Minister Counsellor to the Sri Lanka Embassy in Hague, Netherlands.