Nimal Siripala de Silva (MP), the Senior Vice President of the Sri Lanka Freedom Party (SLFP) filed action in the District Court of Colombo challenging the legality of the constitutional amendments pertaining to the SLFP Constitution which empowered the President of the SLFP to reconstitute the Party’s Central Committee by nominating 35 members of his choice and increasing the number of posts of Vice President to 14 and also increasing the number of Senior Vice Presidents to 7 and also empowering the President of the party to remove any office bearer of the party from his position at his discretion, brought at the Executive meeting held on 2.9.2022.
De Silva prayed for an interim injunction preventing Maithripala Sirisena and Dayasiri Jayasekara from taking any action to prevent him from holding the posts held by him in the SLFP. After hearing submissions, the district judge refused to grant an interim injunction.
Thereafter De Silva appealed against the order of the District Court in the Civil Appellate High Court of Colombo and after hearing the appeal by the Judges, Justice M.C.S. Morais and Justice D.H.S. Gunawardhana made an order to quash the order of the district judge and made an order allowing an interim injunction preventing Maithripala Sirisena and Dayasiri Jayasekara from taking any action preventing him from holding the post he held in the SLFP.
In this landmark judgment internal democracy within a party and also the democratic structure of the SLFP from its inception was deeply elaborated on.
Combination
The fact that the SLFP is a party committed to democracy, is recognised by N.E. Weerasooriya, a leading QC who commanded a lucrative practice and contributed to the field of law as an author. A prolific writer, as well, who wrote on the history of Sri Lanka, in his famous chronicle entitled “Ceylon and her People”, he wrote as to why the SLFP was founded and referred to as to how the SLFP’s commitment to democracy, I reproduce below;
“The attitude of mind of the SLFP was that of a democratic party informed by some measure of evolutionary socialism. It thought of democracy as a combination of both individual and collective freedoms. It meant freedom from fear, freedom from want, freedom form ignorance and the right to choose a Government the public wants.
It sought to protect the independence of the Judiciary.”
The said remark is relevant to the issue as the said writer had written this on SLFP’s commitment to democracy prior to the relevant issue which arose on 2.9.2022.
This statement of N. E. Weerasooriya, QC is relevant to the facts of this case in terms of 32(4) of the Evidence Ordinance, where it states “When the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom, or matter had arisen”. The court is also empowered to take judicial notice of this statement in terms of Section 45 read with 57 of the Evidence Ordinance, where Section 57 states in all these cases, and also on all matters of public history, literature, science, or art, the court may resort for its aid to appropriate books or documents of reference”.
Notices
In this case, the 2nd defendant who is the party secretary has sent the notices P7 (a) and P7 (b) to convening a meeting of the Executive Committee to discuss certain other matters. However, at the said Convention, of the Executive Committee, the 1stand 2nd defendants sought a mandate from the members gathered there to effect the impugned amendment to the Constitution vesting the purported power in the chairman and later they have affected the same and based on the said power the chairman, has removed from several posts including post of Deputy Chairman and the organiser post of Halli-Ela Electorate without any proper inquiry being carried out against him. Thereafter, the plaintiff has sought an injunctive relief preventing the implementation of the said order with no success.
On a perusal of the document marked as P6 to the plaint in the court below which is the Constitution of the party, clause 17 clearly stipulates how a constitutional amendment can be brought including a policy of the party.
As Dr. De Silva, PC argued that the policy of the party is clearly enunciated in the preamble and according to the preamble the party is committed to democracy and the word democracy encompasses and entails consultation, consensus, compromise and due process and its participation of many as possible and accumulating power in one person or authority is against consultation, consensus and compromise because that person’s decision is the dual decision.
Consultation
As such, accumulating power including the power of removal in one (person; without any consultation or consensus amounts to undermining the ideas of democracy. Therefore, if such policy is amended it has to be done by clause 17 by general convention of the party where all members should be convened and it should be affected and passed by the General Convention. However, in this case there was no such procedure followed. As such, there is a clear case of violation of clause 17 of the Constitution by 1stand 2nd defendants particularly. Other than the said amendment was sought without giving proper notice and said notice was given to have an ordinary meeting of the Executive Committee. An Executive Committee can only draft and propose an amendment. That can also be done only at a General Convention.
Therefore, the entire procedure adopted and followed in proposing, passing and effecting the amendment is illegal because there was no General Convention and there was no proposal proposed by the Executive Committee particularly the Political Committee.
Therefore, the entire process is a series of illegal acts. Therefore, nothing flows from that. Therefore, it is my view that the purported removal of the plaintiff from the post of vice chairman and other posts is completely illegal and void.
One of Jayasundara’s arguments is that, with the new powers conferred on the chairman, he has removed the plaintiff from several posts, that he held in the party, by “P4”.
He has done so due to the fact, that, the plaintiff without raising the issue within the party circle has complained against the 1st defendant, the chairman, to the Court in an earlier action which, was settled.
Jayasundara argues that a complaint to a court amounts to criticising the leadership openly outside the party circle. Therefore, with the new powers the chairman can remove him.
If that argument is to be accepted under the powers given by the new amendment, the chairman has purportedly assumed powers to remove a person who has gone before a court of law-’ established under the law of the land, and which is a Constitutional right recognised, that any person can go before a court of law and make a complaint when a cause of action has accrued to him.
Because he made a complaint to a court against him in an earlier action, that is a clear case of denial of access to court and justice.
Therefore, if the 1st defendant has such powers he has become a tyrant and despot. Such personalities are not tolerated in a republic. Therefore, in ‘this case immediately the injunction should be issued.
On the other hand, the 1st and 2nd defendants acting in collusion have removed the plaintiff illegally which does not flow from a legal action; therefore, it is my view, that the plaintiff does not have to ask for a declaration to that effect.
Accordingly, the learned District Judge by the impugned order dated 5.12.2022 marked as ‘X6’ has refused the interim injunction, mainly on the basis that, no relief is prayed against the impugned amendment to invalidate the same; therefore, the plaintiff has not made out a prima facie case.
The District Judge in arriving at such a conclusion has failed to appreciate the illegality of P7 (a) and (b) based on that, the impugned amendment brought about vesting accumulated power in the chairman resulting in erosion of democracy within the party, therefore, the said order of the learned District Judge is liable to be set aside. “Accordingly, I set aside the same and the appeal is allowed and I direct the learned district judge to issue the interim injunction. Parties should bear their own cost.”
Dr. Romesh De Silva, President’s Counsel with Niran Ankettel, Attorney-at-Law instructed by Sanath Wijewardena, Attorney-at-Law appeared for Nimal Siripala de Silva (MP). Chandaka Jayasundara, President’s Counsel with Pulasthi Rupasinghe, Attorney-at-Law appeared for Maithripala Sirisena and Dayasiri Jayasekara.