Supreme Court Ruling in Nazeer Ahamed Case; the cry of a single ‘koha’ will not bring about the ‘Avurudu’ season.


Kishali Pinto-Jayawardene

Sri Lanka’s political establishment continues to be in unusually excited tumult following this month’s Supreme Court decision in the Nazeer Ahamed case, upholding the opposition Sri Lanka Muslim Congress (SLMC)’s expulsion of a dissident member of parliament for voting against the party whip in Parliament.

Amusing repercussions of the Court ruling

He has now forfeited both a ministerial portfolio with which he was ‘rewarded’ after crossing over, and his parliamentary seat, to the little regret (one would presume) of his constituency given this luckless worthy’s less than stellar performance. Regardless of his fate, the wider impact of the ruling on the spectrum of ‘crossover’ MPs has led to somewhat amusing repercussions.

These include members who have ‘crossed over’ from the party on which they were elected and who now either sit with the Government (with some holding Cabinet portfolios) or profess to be ‘independents’ in the House. Many of them have resorted to running hither and thither, pleading with their erstwhile party command to refrain from taking disciplinary action against them. On the other hand, political parties hitherto reticent in dealing with dissident MPs, have taken the upper hand.

All of this would be laughable if not for the serious consequences that these convulsions result in for the unfortunate electorate as a whole. The affected MPs may console themselves by the thought that a single swallow does not make a season. Or to put it more aptly in a local setting, the cry of a single ‘koha’ will not bring about the ‘Avurudu’ season. In other words, this ruling of a three-judge Bench of the Court earlier in October is but one of a plethora of decisions which are diverse in their views.

Ironies galore in the ‘expulsions’ circus

In fact, there are several ironies implicit in these trends of decision-making though the legal niceties of each decision cannot be gone into in this column given constraints of space. Last week, some reflections were made on the context of these several decisions, including a critical assessment of the manner in which the judicial scales have been weighed a tad too liberally in favour of the dissident member against the party concerned in the last two decades until the Nazeer Ahamed decision.

These cases saw the Court holding time and time again that expulsions were bad for a plethora of reasons, some eminently justifiable, as when the expulsion is not at the hands of the relevant disciplinary authority, to others less so. Undoubtedly the matter is clear when the expelling authority has no power to take the decision to expel. This was the case in another decision of the Court (Ven Athuraliye Rathana Thero v Ape Janabala Pakshaya), handed down in the week that followed the Nazeer Ahamed ruling which held that the expulsion in issue was bad in law.

That is eminently distinguishable from instances where the question in issue is whether the proper safeguards had been afforded to the expelled MP including natural justice protections. That question then unfolds in two different ways. Should this precondition of the observance of natural justice be a matter of rigid application? Or should the Court weigh relevant considerations in mind and examine if the right to a hearing prior to expulsion would have been useless, where there is no expectation of a legitimate hearing, where no injustice or ‘real prejudice’ had been caused or where there is an element of urgency involved?
Rigid rules must not be applied

Further considerations may involve examining whether a subsequent hearing after the impugned decision is taken has been ‘satisfactory’ or if any evidence could have been given by the affected MP even if a hearing had been afforded, in other words, if it is an ‘open and shut case.’ All these considerations were articulated in 1993 in one of the earliest decisions of the Court (Dissanayake v Kaleel), reflected in both the majority (Kulatunga and Wadugodapitiya JJ) and minority (MDH Fernando J) opinions in that case.

Both opinions differed in their result. The majority opinion held, in no uncertain terms, that the expulsions of eight United National Party members were valid. The minority opinion held that while the expulsions of the two Cabinet Ministers in issue were valid due to their behaviour in having ‘lied and deceived’ the Cabinet regarding which the opportunity of a hearing would not have made any difference, expulsions of the others were struck down due to failure to follow the rules of natural justice.

Further, the Court did reject earlier judicial reasoning that an MP is predominantly a ‘cog in the party wheel’ even though academic commentators have opined that the decision did not go far enough in protecting the ‘freedom of conscience’ of an MP.

The predominant principle in both opinions was that ‘the Constitution confers primacy to the political party as against the individual MP. The party carries the mandate of the electors and in turn gives a mandate to the MP’ (per MDH Fernando J).

The rash of defections in past decades

Thus, party discipline was key and an MP cannot do whatever he or she pleases, to the cost of electoral stability. Nonetheless, dicta in the majority opinion in the Dissanayake case that the party decision to expel a dissident member of parliament ‘would be competent only in the most exceptional circumstances permitted by law and in furtherance of the public good, the need for which should be beyond doubt’ has had unfortunate reverberations after 1993.

Post this decision, the path of the Court has generally proceeded in prescribing uniformly strict criteria of ‘natural justice safeguards for political parties. Caught in a rash of defections by their members, parties in turn bitterly opined that these standards were too (unrealistically) high to follow. In fact, party leaders who cheered when their saloon doors were swung open for opposition defectors to come in with impunity, had to rue their stand later when they were subjected to the same indignities.

Concurrently, the rise of public opinion against en masse ‘crossovers’ of parliamentarians for political expediency became uniformly vexed if not outright angry. Veritable circuses transpired when the electorate lost sight of which MP or which Minister belongs to which political party, when parliamentarians elected to the House on the opposition ticket, sit in the Cabinet. The contribution of this decadence to the degeneration of the country’s political culture (if that ever existed), has been severe.

Returning to a true conception of the ‘public good’

The question that then arises is as to what is the conception of ‘public good’ that the Court must consider when deciding on an expulsion?

Certainly, the ‘public good’ that was in the mind of the late Justice Kulatunga when he indulged in this dicta in the Dissanayake case, would have been far from the practical realities that transpired in later decades when MPs rampaged from one side to another. Murky waters have flowed under the country’s political bridges since 1993 and the concept of the ‘public good’ has been mocked, reviled and made redundant.

It is perhaps time that we returned to a realistic contemplation of what the ‘public’ or ‘electoral’ good is, when examining the disciplinary processes of political parties. While it is a trite law that natural justice safeguards must be observed, the trick is in the balance that must be preserved.

As the Court in the Nazeer Ahamed case said, the facts show clearly that the political party ‘had tried its best to get an explanation’ from the MP concerned but he had not ‘cooperated.’ In that background, the expulsion was ruled as valid.

This thinking may perhaps pose sorely needed cautions to both party and MP alike when engaging in action that is contrary to the ‘public good.’

Courtesy:Sunday Times