Party allegiance and expulsion of MPs | Daily News

Party allegiance and expulsion of MPs

In a democratic country, people believe that laws of the people shall be made by themselves and nobody else. That power is delegated to their representatives elected through the electoral process in the modern representative democracy.

Universal franchise and the free exercise of the vote are necessary prerequisites of democracy. In a democratic system like others, legislative body - Parliament which represents the sovereign people and therefore and it is competent to express the will of the people in the form of law. Parliament is a representative assembly. The electoral process is the essential mechanism of representation. With the evolevation of representative democratic government with the emergence of party system the relationship between a MP and his or her political party on the one hand and his or her electorate as the other, has changed.

The Electoral System

The Electoral system can be considered as a set of rules applicable to hold an election in a country. 'The electoral system which is a fundamental element of representative democracy', is the bone structure of any present day democratic system. Any defect in the bone structure would adversely affect the democratic body politic. At the beginning of this century, there were only two models of popular electoral systems. The British and the German. The British system was called as plurality; majority or 'first past the post' whereby the candidate securing a larger number of votes than any of his or her opponents, wins the seat. This is the simplest system which has been frequently criticised as producing the least representative results.

The German system was simply called as proportional representation (PR). The principles of proportional representation were conceived in the mid 19th Century. It was Thomas Hare who first devised the scheme aimed at securing a close match between the percentage of seats in Parliament they represent. Various forms of proportional representation exist, such as party- list proportional representation, single transferable vote (STV), single non-transferable note (SNTV) and cumulative voting.In the last seventy years, the Sri Lanka electoral process and the franchise have expanded to such a extent that Sri Lanka could be considered as one of the developed participatory democracies in South Asia.

The 1978 Constitution

The Constitution of 1978 brought drastic changes in the electoral system and the form of government including Executive Presidential System. By the First Republican Constitution of 1972, Sri Lanka ceased to owe allegiance to the British Government.

The 1978 Constitution went a step ahead by including the power of government, fundamental rights and Franchise within the framework of sovereignty of the people.Under the present Constitution, the people of Sri Lanka not only exercise the legislative and the executive powers through their elected representatives and the President, but on certain occasions directly exercise their legislative power. In Sri Lanka the 'first past the post' election system established a clearer relationship between electors and MPs, making such MPs more accountable to their constituents by defining more precisely than before who a Member's constituents actually are.

Under the PR system the constituents get a wider choice of electing the Member, as they are able to choose a Member among the names in the party list. The principal advantage of this system is that it affords an opportunity for various political opinion or distinctive minority political parties or independent groups to secure representation in the Parliament, in proportion to their respective numerical strengths. Election systems based on proportional representation tend to favour a multi-party result which demands a coalition to form a Government supported by a majority of the voters or elected candidates.IF 'first pat the post' gives too little weight to smaller parties, PR arguably gives them too much.

Proportional Representation System

Chapter XIV of the 1978 Constitution (Articles 88-104) deals with Franchise and Elections. Accordingly, Article 99 introduces Proportional Representation System.

His Lordship C.J. Sarath N Silva in the Rambukwella judgment stated as follows:

"Under the law as it stood prior to the Constitution of 1978 the expulsion of a member from a Political Party did not have the consequence of such Member vacating his seat in Parliament. Article 99 of the present Constitution departed from the previous electoral system of 'first past the post elections' to one of proportional representation, in terms of which a Party is declared entitled to such number of Members of Parliament in proportion to the votes gained by the Party in an Electoral District.

In terms of Article 99(2) as it stood, the Party when submitting a nomination paper was also required to set out the names of the candidates in order of priority on the basis of which the candidates were declared elected depending on the proportion of votes gained by the Party. This system of Elections is generally described as the 'List System' or 'Crude List System'.

Article 99(13) (a) in regard to expulsion of a member from a Party with the consequence of his vacating the seat in Parliament, with judicial review by this Court as to the validity of such expulsion was introduced as a part of this system of Elections".

"The Fourteenth Amendment to the Constitution certified on 24.05.1988 repealed Article 99 and substituted a new provision which removed the power of the Party to indicate a priority of candidates in the nomination paper and empowered the electors to indicate their preference of not more than three candidates nominated by the same recognized political party. Thus the 'List system' or 'Crude List System' was replaced with the 'Preferential System' which is now operative. However, the provisions of Sub- Article 13(a) of the original Article 99 were included verbatim in the newly enacted Article 99 as contained in the 14th Amendment.

In view of the change of the electoral system effected by the 14th amendment the review of the validity of a decision of expulsion has to be, in my view, now considered not only from the perspective of a vacation of the seat of the Member in Parliament but also from the perspective of the impact on the Electorate which he was declared on the basis of preferential votes cast in his favour.

As a result of the expulsion by the Party the voters preferred candidate is removed from his seat in Parliament and replaced by a candidate who at the original election failed to obtain adequate preferential votes to gain election to Parliament. In short the winning candidate is replaced by a candidate who has lost, as a result of the expulsion.

Thus, in consequence of the expulsion not only the member loses his seat in Parliament but also there is a sub version of the preference indiated by the electors in exercising their franchise. In view of these far reaching consequences I am inclined to agree with the submission of Mr. Wijesinghe that the standard of review of a decision of expulsion should be akin to that applicable to the review of the action of an authority empowered to decide on the rights of persons in Public Law. Generally such review comes within the rubric of Administrative Law".

MP and Political Party System

As stated by his Lordship S.N. Silva, CJ., in the case of Rambukwella v UNP and Others:

"A political party comes into existence as a matter of private arrangement (contract) between persons who have the object of gaining power at elections but the character of such Association alters to a certain extent after gaining recognition as a Political Party as provided in section 7 of the Parliamentary Elections Act No.1 of 1981. Thus a Political Party which commences as a private Association gains statutory recognition in reference to its Constitution with specific legal powers generally in regard to elections and it plays a vital role in the realm of Democratic Governance ......."

All political parties issue manifestos through which they place their policies before the electorate..All the contestants of a respective party are bound to canvass only the party manifesto by which introduces its agenda or rather its policy.This party agenda or the party policy is being drafted according to the choice of the respective party. One can argue that as the party policies are more national in character, they tend to overlook area specific concerns, however crucial they may be.

The constitutions of political parties have laid down various disciplinary procedures governing MPs who act against the will of the party or party leadership. In view of the expected relationship between the MP and his/ her political party it is extremely important for the Parliamentarians to balance the loyalty towards the party and his or her individual conscience.

Parliament and MP

With the evolution of Representative Democratic Government and with the emergence of the party system, the relationship between a Member of Parliament and his or her political party, on the one hand and is electorate on the other, has changed.

In Sri Lanka Parliament in terms of Article 4(a) of the Constitution has the power to exercise the legislative power of the people. The composition of Parliament is specified in Chapter X and Chapter XI deals with its basic functions, procedure and powers. The Opposition MP has a vital role to play in the Parliament to safeguard the democracy of a country than changing their party allegiance. The first duty of the opposition is to offer voters a credible alternative to the majority. Therefore, the Parliamentary opposition must be strong enough both in numbers and in quality, to control the exercise of government within a democratic framework for the benefit and on behalf of the voters.

Freedom of speech a key element of Parliament's privileges and it is being considered the lifeblood of democracy.The conscience vote of the MP is a result of his freedom in Parliament, complemented by privileges of the House, to cast his vote according to his conscience free of any encumbrances.

Conscience votes are quite rare and are usually about issues which are very contentious. Matters such as the prohibition of alcohol, homosexual law reform and the legality of prostitution are often subject to conscience votes. In the British House of Commons there used to be a conscience vote on the restoration of the death penalty, which had been abolished in 1964. It is also noted here that the opportunities for the 'back bench' members to take part in the full range of parliamentary activities are being guaranteed in Parliament. The best examples in Sri Lanka are those provisions in Parliamentary standing orders which enables the MP to submit and participate through individual members of 'private members' bills in the direct legislative function.

Law on Expulsion of MPs

When a MP criticizes his own party or party policy in Parliament disciplinary action against that MP or the change of party by such MP himself could be expected. Since the voter, under PR system, has to first vote for the party and thereafter, only the preference vote being cast for a nominee or nominees of that particular party, political parties demand that the MP should follow the party line and obey the decisions of the party whip. Although a political party has a free hand in maintaining party discipline, but it is mandatory for the political party to adopt an extremely democratic procedure in engaging with the MPs who exercise 'conscience vote', against the party policy or any act against the party in view of safeguarding the rights of the people.

Article 99 (13) (a) of the Constitution provides that where an MP ceases, by resignation, expulsion or otherwise to be a member of a political party or independent group, his seat in Parliament shall become vacant, upon the expiration of a period of one month from the date of his ceasing to be such member. Article 99 (13) (b) provides an exception to that.

Accordingly, if the expelled member challenges the expulsion in the Supreme Court, the vacancy of the seat occurs only from the date, the Court determines that the expulsion was valid.

This Article further provides that such petition shall be inquired into by three judges of the Supreme Court who shall make their determination within two months filing such petition.

This safeguard provided in Article 99(13)(b) of the Constitution must have been designed for the Members who become subject to arbitrary decisions of the party leadership and should also not be abused by the Members as a carte blanche to breach party discipline.Furthermore, in terms of Article 99(13) ( c) of the Constitution as a result of the expulsion by the party the voters preferred candidate is removed from his seat in Parliament and replaced by a candidate who at the original election failed to obtain adequate preferential votes to gain election to Parliament.

Expulsions in the First Parliament

Chapter XXI (Transitional Provisions) of the 1978 Constitution contains a provision - Article 161 (d) (ii) which was applicable only to the Members of first Parliament. It is also noted here that the Members of the first Parliament were not elected under PR system but under the 'first past the post' system.Article 161 (d) (ii), was first amended by the Second Amendment to the Constitution, certified on 6.02.1979 and further by the 3rd, 4th, 5th and 6th Amendments to the Constitution.

When considering the aspect of an MP exercising his political conscience and taking political decisions based on an individual basis one can argue that the provisions of the Article 161 (d) (ii) are relatively more democratic than that of the Article 99(13)(a). Under article 161 (d) (ii) as amended where an MP ceases to be a member of a party, the secretary of such party shall communicate to the Secretary General of Parliament, the fact and date thereof and there is also select committee procedure with voting thereafter in the Parliament. However, no such Select Committee shall be appointed, where the expelled member applies to the Supreme Court for a determination that such expulsion was invalid, unless and until the Supreme Court has determined that such expulsion was valid.

Case Law on Expulsion of MPs

Given below are several determinations of the Supreme Court on expulsion cases under Article 99 (13) (b) of the Constitution.

Gunawardene and Abeyawardane Cases.

The cases of Gunawardene v Nandalal Fernando (taken up with Abeyawardane v Abeyawardane), can be considered as the earliest cases dealing with the so-called expulsion provisions of persons elected to public office consequent to the formulation of the current legal system.

Those two MPs defied the party whip and abstained from voting in favour of the 13th Amendment Bill and Provincial Council Bill at the stage of the Second Reading in Parliament. After a disciplinary inquiry, UNP expelled both the Members from the party.

Those two MPs argued, in Supreme Court that in abstaining from voting that they exercised the freedom guaranteed to them under the Parliamentary (Powers and Privileges) Act.

Sharvananda CJ giving prominence to the decisions of the political party determined that the expulsions were valid. His Lordship had observed that the democracy has assigned to the individual Member the role of a cog in the party wheel and MP becomes little more than a rubber stamp for its decisions. His Lordship had further observed that since the Fundamental Rights were guaranteed against the State they have nothing to do with rights of individuals inter se. It is important to note that this Judgment was delivered before incorporating the 14th Amendment to the Constitution and therefore Sharvananda CJ had not considered the effects of the said Amendment on the PR system.

Dissanayake v Kaleel and Others Case

Ministers Gamini Dissanayake and Lalith Athulathmudali led a group of MPs who moved to impeach President Ranasinghe Premadasa. The Disciplinary and Working Committees of the UNP recommended that eight UNP MPs including above two senior members be expelled from the party. They were expelled from UNP on 6th September 1991. Those MPs petitioned the Supreme Court under Article 99(13)(a) of the Constitution. Other connected cases of the other expelled members were also taken up together.

In his judgment, Justice Mark Fernando analysed the principles of natural justice exhaustively. His Lordship noted that it was now settled that it applied to every tribunal or body of persons 'with authority to adjudicate upon matters involving civil consequences to individuals' . Fernando J., argued that the jurisdiction exercised by the Supreme Court under Article 99 (13) (a) also involved a consideration of the merits of the case. While Fernando J., held that expulsion of 6 MPs was invalid on the grounds of beach of natural justice, Fernando J., reached a different conclusion with regard to the two members of the Cabinet. Hon. Ministers Lalith Athulathmudali and G M Premachandra. His Lordship held that the expulsions of these two members were valid because they had deceived the Cabinet by voting in favour of President Premadasa at a Cabinet meeting. They had thus deceived the Cabinet and a hearing in their case would have made no difference.

However, Justice Fernando's judgment, was the minority judgment. Justice Kulatunge, with whom Justice Wadugodapitiya agreed, held that the expulsion of the eight petitioners was valid. Justice Kulatunge held that the petitioners had obtained a hearing before the Supreme Court and this cured the initial lack of a hearing. "The subsequent hearing by this Court is in substance a right to an antecedent hearing' his Lordship observed..

Jayathilake and Another v Kaleel& Others Case

Two MPs, Ariyarathne Jayathilake and S.A Muthubanda challenged their expulsions from the UNP. In this case Petitioner, Jayathilake who admittedly signed the same notice of resolution, claimed that he did so in pursuance of a constitutional right, power or authority which comes under Article 38 (2) of the Constitution.

The petitioners were expelled in breach of the rules of natural justice. The party wrote to the petitioners informing them about the expulsion and stating that the petitioners could submit their observations. The petitioners replied answering the allegations against them. The party considered their replies and confirmed the expulsion.

Kulathunga J. in agreement with Wadugodapitiya J. determined that the expulsion of those two Petitioners was valid. Fernando J. also, but in a separate judgment, determined that the expulsion of the petitioners was valid.

Kulathunga J. observed that even if the MP's actions contravene party discipline, such could not override their constitutional and statutory rights. However, His Lordship has stated that he had upheld the right of MPs to take proceedings under Article 38 of the Constitution or to agitate matters in public but after first raising the issues within the party. Due to the observation of Kulathunga J., the freedom of MP has been restricted by introducing a condition that the MP should take up his issues first within the party before allowing such freedom of conscience to be exercised freely in public.

Amunugama and Others v UNP and Others Case

The Petitioner, MP Sarath Amunugama and four other MPs who were members of UNP were summarily expelled from the membership of the party. The immediate ground of expulsion was that the Petitioners had met President Chandrika Bandaranaike Kumaratunga and assured her of winning the Presidential Election 1999 when in fact the UNP had nominated its leader as a candidate at that same election. Another allegation made, especially against the petitioner MP Amunugama, was announcing to the media about the formation of a National Government without a mandate from his party. In a wide ranging judgment which discussed the principles of the natural justice at length it was held by the Supreme Court that expulsions of several MPs of UNP were invalid by reason of the failure of the respondent to observe the principles of natural justice.

Bogollagama v UNP and Others Case

The Petitioner Hon. Rohitha Bogollagama who was an opposition (UNP) MP, crossed over to PA and was sworn in as a Minister in the Government of then President Chandrika Kumaranatunge. Subsequently the petitioner was served with a letter by the UNP, which stated that the working committee had noted that he had ipso- facto ceased to be a member of the UNP with effect from 18th November, 2004 by reason of Article 3 .3(b) read with 3.4 (d) of the party constitution.The petitioner further claimed that the said amendment was introduced obviating the need for disciplinary proceedings and the compliance with rules of natural justice and also effectively preventing resort to the Constitutional remedy given under Article 99(13) of the Constitution of the Republic.

Jayasinghe J. held that Article 3.4 of the constitution of UNP is inconsistent with the provisions of Article 99(13) (a) of the Constitution of the Republic and in that it sought to take away the constitutional rights of the Petitioner to invoke the Jurisdiction of the Court. Accordingly, the Supreme Court determined that the 'purported expulsion' is of no force or avail in law and accordingly invalid.

Rambukwella v UNP and Others Case

The Petitioner, Hon. Rambukwella who was a member of the opposition UNP , accepted a Ministerial portfolio and was so appointed by then President. Subsequently, he was expelled from the UNP on the basis that he had violated the party constitution. The Supreme Court after inquiry held that expulsion was invalid

The Supreme Court further held that (Per Sarath N Silva CJ).

(1). The standard of review of a decision of expulsion should be akin to that applicable to review of the actions of an authority empowered to decide on the rights of persons in Public law. Such review comes within the rubric of Administrative Law.

(2). Where a person has the right to be heard the provisions of sections 41 (2) of the Judicature Act will apply and such person is entitled to be represented by an Attorney at - Law. The Panel of Inquiry acted in breach of the principles of natural justice in denying legal representation to the petitioner.

(3) In terms of section 41(2) of the Judicature Act No.2 of 1978 the right to representation by an Attorney at Law can be denied only if there is express provisions by law to the contrary, the guidelines issued by the then General Secretary cannot be considered as an express provision of law.

Samaraginghe v UNP and Others Case

The Petitioner Mahinda Samarasinghe MP, also has received an invitation from the President to join his government. Accordingly, Petitioner MP, Samarasinghe accepted a ministerial portfolio in the government. Consequently he too was expelled from the UNP.The charges as contained in the charge sheet that served on him by the UNP are identical to the charges against MP Rambukwella. The Court, in this case, held that it sees no reason to depart from the findings in the said Rambukwella case and decided that the said expulsion of petitioner was invalid.

Piyasena v Illankai Tamil Arasu Kadchi and Others Case

The Petitioner has filed this application challenging his purported expulsion from the party. The Supreme Court held that the decision to expel the petitioner from the membership of ITAK on a purported decision of the Disciplinary Committee is ex-facie illegal in as much as it has not been made by the appropriate disciplinary authority in terms of the ITAK Constitution. In these circumstances the Court held that it is not necessary to go into any of the other grounds urged in the petition. Therefore the Supreme Court held that the expulsion of the petitioner is invalid.

The Supreme Court further held : (Per Saleem Marsoof J.,) that :

(a) the jurisdiction of the Supreme Court to determine the validity or otherwise of an expulsion in terms the proviso to Article 99 (13) (a) of the Constitution is neither injunctive nor discretionary, and does not necessitate any inquire into the conduct of a person invoking the said jurisdiction.

(b). the jurisdiction conferred by Article 99(13) (a) of the Constitution is sui generis, original and exclusive, and does not confer any discretion to the Supreme Court to dismiss in limine an application filed thereunder merely on the ground of suppression or mis- respresentation of material facts, as in cases involving injunctive relief or applications for prerogative writs.

(c) the only matter for determination in terms of the proviso to Article 99(13) (a) of the Constitution is the validity or otherwise of the expulsion of the applicant MP, and his conduct subsequent to his expulsion is altogether irrelevant.

Courts' response to expulsion cases

The cases of Chandrakumara Wijaya Gunawardene v Nandalal Fernando, and Mahinda Yapa Abeyawardane v Harsha Abeyawardane can be considered as the earliest cases dealing with the so-called expulsion provisions of persons elected to public office consequent to the current legal regime. In the said cases whilst holding inter alia that the expulsions of two Parliamentarians who were members of the United National Party were valid it was held by the Supreme Court that;

Wijegunawardene case is a case where an MP was punished by the party for exercising free conscience within the Parliament. The decisions of Gunawardene case and Abeywardane case in which it was decided that democracy has assigned to the individual member the role of a cog in the party wheel, was pronounced before the implementation of the 14th Amendment to the Constitution. The 14th Amendment which introduced the preferential voting system in fact controvert the courts' pronouncement which relegated an MP to a 'mere cog in the party machine'.

A slight departure from the rigid view can be observed in Jayathilake and Another v Kaleel and Others and Gamini Dissanayake v M.C.M. Kaleel and Others, In Dissanayake v Kaleel, the question of adherence to principles of natural justice was discussed at length. In the majority judgement Kulatunga J and Wadugodapitiya J, held that the expulsions under reference in the said case was valid and that there has been no material breach of the principles of natural justice. In his dissenting judgment Fernando J held that some of the expulsions were invalid by reason of violation of the principles of natural justice.Consequent to the above decision, there have been a series of judgments made by the Supreme Court and the Court of Appeal wherein an extremely stringent test has been adopted to determine whether there has been compliance to the rules of natural justice.

The decisions of the Supreme Court, commencing from Dissanayake case including decisions in Amunugama, Rambukwella and Samarasinghe holds that there should be compliance with the principles of natural justice and that it's a mandatory requirement in expulsion cases. His Lordship Sarath N. Silva C.J., held in the Rambukwella casethat since the power of expulsion in relation to a MP has to be exercised in compliance of natural justice it would come within the ambit of a quasi- judicial power. Lord Diplock's statement on 'grounds of review at Public Law' in the case of Council of Civil Services Union was referred to by His Lordship S.N. Silva C.J. Accordingly, the 'illegality', 'irrationality' and 'procedural impropriety' should generally apply in deciding on the validity of an expulsion in terms of Article 99(13) (a) of the Constitution. The important factor is that His Lordship has made that observation in view of the far - reaching consequences of PR system such as the subversion of the preferences indicated by the electors at the time of election.

In Bogollagama Case too, the issues of the clause 3.4 of the UNP constitution arose in terms of which the membership of party shall ipso facto ceases upon the happening of any one or more of the reasons mentioned therein including the reason of a member accepting office in the administration formed by any other political party or alliance. The Supreme Court held that this clause of the UNP constitution is inconsistent with the provisions of Article 99(13) (a) of the 1978 Constitution and in that it sought to take away the constitutional right of petitioner to invoke the jurisdiction of the Court.

The position now rather seems to be, as articulated in cases such as Rambukwella Case and Bogallagama Case that extremely stringent standards of adherence to the rules of natural justice are required to justify an expulsion. The bar has been set so high that one may argue that the Courts have erected an edifice that not only protects a person holding an elected public office from being unjustly expelled from his/ her political party in violation of the principles of natural justice but also one that confines the Court itself from allowing the sanctioning of malleable and disingenuous politicians abusing the judicial process to cling onto their offices.

It is also submitted that as a whole, the present stance adopted by judicial authority is a progressive one and is an instance wherein the rights of individuals have consistently been given primacy over those of some institution claiming to exercise overarching and unfettered powers over such persons. Therefore, it is the reasonability of the electors to ensure that no abuse of this process occurs. This can be done by exercising their franchise with prudence and foresight so that persons who steadfastly follow a particular policy platform and or political ideology, and not those driven by artifice and avarice, are elected to represent them.

Balancing Party allegiance and expulsion of MPs

Since most times when an MP crosses over to the government party or joins with another political party, the respective MP will be expelled from his original party. While there is an individual responsibility of MPs to defend and safeguard the interests of their constituents, there is also an important duty cast upon the political parties to follow internally democratic procedures, enabling the MPs to express their views freely first within the party and then inside the House. It would not be correct for the political party to expel their members arbitrarily posing a great threat to the mandate given by the people and to democracy. Having extremely rigid party discipline in party constitution would certainly undermine the individual conscience of the MP and the party democracy.

This fact also obstructs the MPS genuine efforts in striking a balance between conscience of MPs and party loyalty. Since conscience of MP changing the party loyalty is a also a valid ground in legal proceedings, conscience of MP should not be tainted by corrupt mind and seeking personal gains, in view of the broader public good.

The point where the expulsion of MP from the party comes to infringe the individual rights of a Member has been clearly drawn by Inter Parliamentary Union (IPU) Governing Council in test cases before its Committee on the Human Rights of the Parliamentarians. First any expulsion should accord with a party's internal rules guaranteeing due process, including the right of a member to defend him or herself. Secondly, any expulsion should not result automatically in the member's loss of his or her Parliamentary seat or curtailment of its duration, since this would undermine the member's right to freedom of expression. As the IPU reiterated, a member's disqualification from Parliament requires a decision by Parliament as a whole, and should only follow conviction for a criminal offence, not loss of party membership.

Attempts have been made in striking such a balance. . One instance is the 19th Amendment Bill in Sri Lanka that was proposed. A unique but restricted philosophy was introduced by Clause 6 of the 19th Amendment to the Constitution. Clause 6 of the proposed 19th Amendment reads

"A member of Parliament who speaks or votes or abstains from voting on any amendment to the Constitution contained herein, according to his own belief or conscience or free will, shall not be expelled or suspended from membership or be subjected to any disciplinary action by recognized political party or the Independent group as the case may be on whose relevant nomination paper his name appeared at the time of his becoming such Member of Parliament for having so spoken or voted or abstained from voting, and the provisions of sub- paragraph (a) paragraph (13) of Article 99 shall not apply to such Member and the seat of such Member in Parliament shall not thereby become vacant.'

It was unique because the own belief or conscience or free will of an MP has been expressly recognized by the proposed Amendment. However, that recognition has been highly restricted only to an issue of speaking or voting at the time of amending the Constitution as mentioned therein.The Supreme Court determined that the 19th Amendment Bill which also included provisions for dissolution of Parliament was unconstitutional and required to be passed by a special majority and be approved by the people at a Referendum. However the Court did not comment on the political philosophy behind the said Clause 6 of the draft Bill.

After the Supreme Court determination, the 19th Amendment Bill was neither submitted to Parliament for special majority approval nor to people for approval at a Referendum. It is our view that expulsion of an MP from his political party should not tantamount to a vacation of his or her seat in Parliament. However, it needs a proviso, which should prevent the MP securing his seat in the Parliament in an event he decides to dissent merely for his own personal benefit and against the voters' will. Member who is expelled by the party may continue to be an independent member until and unless his original party vacates the relevant expulsion order.