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.
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
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.'
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