Focus on Rights

Banished from green paradise ?

By: Kishali Pinto Jayawardene

It would have been fortuitous if members of the UNP inner circle voting for the summary expulsion of five of their erstwhile buddy mates in November last year, had been that much better acquainted with their Biblical parables. Refer, in particular, to the admittedly picturesque happenings in the Garden of Eden, where as the Bible has it, man (and woman) were first created. As is revealed, God himself did not pass sentence on Adam before he was called upon to make his defence." 'Adam' says God, 'Where art thou?', 'Hast thou not eaten off the tree whereof I commanded thou that thou should not eat? " And the same question was put to Eve also.

Given a historic judicial fondness for quoting the above, it was to be expected that Thursday's judgement by the Supreme Court in the 1999 UNP Dissidents case, midway through its reasoning, would remind us of this homely truth in no uncertain terms. The analogy is obvious, though the consequential lumping of Messrs Sarath Amunugama et al. in the same category as the First Sinner is a trifle unfortunate. In his divine wisdom, the Almighty knew that Adam had sinned, along with Eve. Irrespective of this, he asked the two recalcitrant ones for their explanations. It was only following this that they were banished from Paradise. Or so the story goes.

What is important is that this is precisely where the UNP, in their wisdom or un-wisdom as the case may be, erred. In a mistaken confidence based on earlier precedents, the UNP Working Committee proceeded to expel five UNP MPs in early November last year, justifying very specific conduct on their part as reason for summary expulsion. Following a controversial BBC interview where present Minister of Special Assignments Sarath Amunugama had said that he would quit the UNP if there is no proper response from the party to his proposal for a national government. Amunugama was asked to explain himself. On the same day Amunugama replied to the letter, requesting time to reply and wanting to know what specific provisions of the party constitution he had violated by the said interview,

He along with other rebel MPs, attended a meeting hosted by President Chandrika Kumaratunga without the sanction of the Party. Worse, they had agreed to support her candidature for the forthcoming Presidential Elections and had discussed the formation of a national government in this regard. Further inquiry was thought to be redundant. Explanations were called for in a confused manner from some but not others of the rebel group and with regard to some but not all of the charges against them. Meeting some three days after the Presidential meeting, the Working Committee decided that five of the eight errant MPs be expelled "with immediate effect", resulting in their challenging the action of the party before court.

A committee was appointed to deal with the others. Given the above, the question was whether the five dissident MPs deserved any kind of notice at all to have been given before they were expelled? Could it be said that, in the circumstances, a hearing would have been useless? This week's judgement by a Supreme Court bench comprising Justices A.R.B. Amerasinghe, Bandaranayake and Ismail answered this question unequivocally in the negative.

While acknowledging that the Supreme Court should not act in vain and insist on useless formalities, it was nevertheless pointed out that the circumstances surrounding the expulsion were far from clear. The case against the rebels were based mainly on newspaper reports. Some of these reports implicated some of the dissidents but not the others. Again, some of the statements attributed to them were ambiguous and others had to be understood in the context of an endeavour to forge a national consensus on matters of general public concern.

Further, there were reports of things not told to the reporters but supposed to have been said to other persons. In the circumstances, a fair hearing would have been useful to ascertain the truth and to impose suitable punishment. Expulsion was not automatically called for and the Working Committee had a choice of sanction, which could have been decided on after a hearing. Then again, the Presidential election campaign was on and the rebels were not only expressing their open support for the rival candidate but were also attempting to persuade others at grass roots level to vote against the party. Could it be said that the circumstances were so urgent that the rebels should have been swiftly dealt with, without the delay that a hearing would have involved? Here too, the answer was in the negative. Urgency was held to apply only in very tight cases such as overriding considerations of national security, public health or safety. Such a situation of extraordinary urgency cannot be said to exist in the instant case. In the context of the whole, it is crucial to note that the dissatisfaction of the Court came from the fact that absolutely no hearing had been given to the expelled dissidents in a manner contrary to the party guidelines themselves. If even a limited hearing had been conceded where the time for responding to a charge sheet or making submissions would have necessarily been reduced, the results could well have been different. In the alternative, in the words of Justice A.R.B. Amerasinghe, delivering the judgement of the Court,"the summary dismissals were intrinsically unfair even though they may have been fully justified

It is that word "may" used by the Court that tends to tempt the reader somewhat tantalizingly. The Court declines to consider whether the expulsion was valid on its merits. Its reasons for not doing so are articulated very clearly.

The evidence before the Court was incomplete in that material relating to radio and television broadcasts on which the decision to expel had been taken were not placed before Court nor were relevant reports tabled before the Working Committee identified. Moreover, the facts relating to the expulsion of the five MPs were disputed unlike in 1991 when the expulsion of six MPs of the UNP including late Ministers Lalith Athulathmudali and Gamini Dissanayake were upheld, involving a consideration of the merits of the expulsion. Again, unlike in the Dissanayake case, the Supreme Court in the instant case thought that there were "no weighty considerations", compelling the Court to go further. Thus, this week's judgement saw the Supreme Court preferring to base its decision on a narrower insistence on natural justice protection with regard to expulsion of parliamentarians. If however, the gaps in the evidence before Court had been supplied, it would have been interesting to examine the manner in which the Court would have dealt with the substantive issues involved.

Was the conduct of the rebel MPs sufficient to justify expulsion? Was their talk of a national government merely a cloak for sabotaging the election campaign of their party leader? If not, to what extent, could they have dissented from the party hierarchy in pushing their views? Would the Court have followed the previous line of judicial reasoning that tended to emphasize the will of the party over and above the will of an individual member of Parliament? Within the practical framework of the shamelessly pervasive expediency that passes for politics today, a judicial thrashing out of these questions against the Constitution vis a vis the party leadership, would have most definitely had its own individual impact on the body polity.

This would have been more particularly so in the background of the recent move to push through a Members Conscience Bill, involving debate on what form such a Bill should ideally take within the context of an effective parliamentary democracy. That evidential deficiencies impacted in preventing such a crucial analysis of issues in the 1999 UNP Dissidents case was undoubtedly a pity.

A politician and a gentleman

If the late Dr. W. Dahanayake, [affectionately known as Daha] was not the most colourful politician Sri Lanka ever had, he was certainly one of them. His actions were quite complex, but no more complex than the community he represented.

Although remembered as a teetotaller and campaigner against alcoholism, W. Daha was not immune to alcohol as a young politician. W. Daha was once charged and convicted in court under the Vagrants' Ordinance for being drunk and disorderly on a public road. What a transformation there was of the man thereafter, and he went on to become Prime Minister of Sri Lanka! How effective a corrective measure by the police and courts! Alas, how many good lessons deserving politicians miss today as a result of the police having their hands tied.

Many in the police have described W. Daha as an interfering politician. He did intervene on behalf of people who wanted his help and he took up the cause of anyone and everyone who sought his assistance, with equal fervour. W.Dahas's impartiality was such that he did not impose decisions on the police.

I can speak from a personal experience when I had to confront W. Daha. In 1959, when I was new to the service, I was called upon to arrest a man abusing residents on Peddler Street, Galle. A mobile-patrol jeep was ready and a reserve-sergeant instructed me on the procedure I should follow. The mobile party knew exactly where to go as they had gone to arrest the man earlier but failed to do so when they found the drunkard to be the famous Kiri Albert, a staunch supporter of W.Daha.

I walked up to Kiri Albert and to my dismay found none of the policemen getting off the jeep. It was too late to turn back, so I had to go through the motions as briefed by the sergeant. As I formerly explained the charge against him and informed him that he was under arrest and stretched my hand to place it on his shoulder as required by law, he swung his hands towards me either to ward off my hand or to push me aside. With excitement making up for shortage of experience, I used sufficient force as provided by the law, to bring him under control. The man who was already tottering on his feet dropped like a sack of potatoes. At that stage, the police party assisted me to put him in the jeep and rushed to the police station. Back at the station, I was advised to take Kiri Albert to the Judicial Medical Officer and obtain a medical report before W. Daha turned up. The JMO certified that the suspect was under the influence of liquor and had no injuries.

No sooner had I got back to the police station and produced the suspect with the medical reports, W. Daha was there firing a tirade against the police. When he was leaving the station, I walked up to him and meekly explained what had happened. He advised me to write my notes very carefully and not to worry about his complaint because there was to be an inquiry before any action was taken against me. He also told me to let him know if I had any problem over his complaint.

Kiri Albert was charged in courts under the Vagrants' Ordinance for drunk and disorderly conduct and convicted. That matter ended there and Kiri Albert stopped his hitherto regular drunken performances in public.

All in all W. Daha had no venom against anybody and was incorruptible and genuine. He reminded me of King James 1 of England who was highly educated but not trained to be a Judge. He considered himself educated enough to try his hand as a judge against the advise of the chief justice, but soon gave up saying "I could get on very well hearing one side only, but when both sides have been heard, upon my word I know not which is right."

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