Can Mahinda be ejected from SLFP?
Posted on January 10th, 2018

By Faizer Shaheid Courtesy Ceylon Today

There is nothing new in seeing dirty politics at play. The tactical ploys of those in power are somewhat a musical comedy to some and a rather frustrating melodrama to others, yet it continues. The latest saga once again concerns Mahinda Rajapaksa, the deposed President of Sri Lanka, who continues to be the face of the SLFP, no matter which party he contests from. Ever since Rajapaksa was defeated three years ago, the political bigwigs have been tailing his every move, pointing fingers at him no matter which direction they turn.

The negative publicity was always negated by the disappointment of the people that the Government had to resort to the blame game instead of manning up and owning their blunders. While the bond scam and corruption charges continue to be flung at the Rajapaksas, three years since his defeat, no charges have yet been proved. Either the due process must be incredibly slow, or the Government is merely going to repeat the same dialogues until the next elections.

The Local Government Elections are now approaching and once again, it appears that Mahinda Rajapaksa is the man of the hour.

On one hand, the United National Party (UNP) appears to be taunting and tainting Rajapaksa with corruption allegations at the turn of the bond scam report, while on the other hand Sri Lanka Freedom Party (SLFP) appears to be having problems with Rajapaksa for supporting the Joint People’s Front (JPF) and not the SLFP.

Ethical factor

The UNP on one hand cannot seem to come out of their election victory mood from three years ago. It sometimes feels like they are stuck in a time loop that keeps taking them back to their election victory days. No amount of nudging appears enough to wake them back to reality.

On the other hand, SLFP have made it abundantly clear that they are contemplating action against Rajapaksa for openly advocating a different political party. True enough, Rajapaksa had contested and won from the SLFP and has indeed been a staunch member of the SLFP for over 40 years. The jealousy stems from the fact that, when Western Province Chief Minister Isura Devapriya had proposed to use the image of Mahinda Rajapaksa in SLFP posters, Mahinda had objected to the Commissioner of Elections. Yet, he had permitted those contesting under the Pohottuwa (Flower Bud) symbol of JPF to use his image.

The SLFP have threatened action against Mahinda Rajapaksa and his supporting politicians with expulsion from the party since the very first day, yet no action has since commenced. Neither is it likely to commence at any point in the near future.

No matter what some SLFP politicos may claim, Rajapaksa is simply following the precedent set by his presidential successor and incumbent President Maithripala Sirisena. Sirisena had set a swing in motion when he crossed over and contested his own party member at the presidential election in 2008. He not only supported a different party by the name of the New Democratic Front (NDF), he became its candidate and contested against the SLFP candidate.

With his election victory, he also returned to take over the reins of SLFP and dictate terms to those in the party. Sirisena had completely gone off the books of ethical politics in order to pull off this blinder, but it worked. Being so, it is completely unethical for the same man and his supporters to once again point fingers at Mahinda Rajapaksa.

Expulsion plans will fail

Very recently, Sports Minister Dayasiri Jayasekara had claimed that the Central Committee of the SLFP were currently evaluating the case of Mahinda Rajapaksa and his support for the Sri Lanka Podujana Peramuna (SLPP). Apparently, he had claimed that the process will take time, and that stern action will be taken against party members who attend the rallies of other parties.

The problem is, nothing at all will matter to Mahinda Rajapaksa and his supporters except for expulsion from the SLFP. The reason being, an expulsion from a political party will automatically result in expulsion from Parliament. This is noted in Article 99 (13) of the Constitution.

However, the law comes with a proviso that if the expulsion is challenged in the Supreme Court within a month of expulsion, then the expulsion will not be valid unless Supreme Court upholds its validity. Herein lays the problem.

The very first expulsion happened in 1991, when Gamini Dissanayake, Lalith Athulathmudali and seven other Parliamentarians were expelled from the UNP for attempting to impeach then President Ranasinghe Premadasa. The Supreme Court upheld the expulsion and the Parliamentarians lost their seats in Parliament.

However, since that date, no party -based expulsion has ever been upheld in the Supreme Court. The wisdom is gathered from the dictum of Justice Kulatunge in the same case (referred to as Gamini Dissanayake vs. M. C. M. Kaleel and others):

“The right of a member of Parliament under Article 99(13)(a) is a legal right and forms part of his constitutional rights as a Member of Parliament. If his complaint is that he has been expelled from the membership of his party in breach of the rules of natural justice he will be ordinarily entitled to relief and this Court may not determine such expulsion to be valid unless there are overwhelming reasons warranting such a decision.”

This dictum was given very wide effect in all forthcoming cases, and no case in respect of expulsions was ever satisfied well enough to warrant an approval from the Supreme Court. For over 25 years, there has been no expulsion that has been validated by the Supreme Court, and this is highly unlikely to change in the near future. In many cases before the court, where the intentions of the expelled members have appeared to be fairly clear, and where the party has conducted a proper investigation into the matter, the matter has still not won the approval of the court.

This is the prime reason why, despite the straightforward violation of party principles and outright challenge of the party itself, incumbent President Maithripala Sirisena, was able to contest and win the election without being expelled from the SLFP.

Furthermore, Mahinda Rajapaksa contested from the United People’s Freedom Alliance (UPFA). Therefore, regardless of circumstances, even if he is expelled from the SLFP, he will not automatically be stripped out of his position as a Parliamentarian.

Other party action

The SLFP may attempt to cause trouble one way or another to the former President. Perhaps, his actions may result in a suspension from the SLFP, or perhaps, he may be stripped out from other party positions such as that of an organizer or from being a Central Committee member. However, any move of such nature will only embolden him further and make him even more popular among his followers.

Besides, whether or not he is penalised from the SLFP, Rajapaksa has not washed his hands off SLFP and embarked on a renewed journey. No matter what the consequences are within the SLFP, the effect on him will be only minimal.

Conclusion

Mahinda Rajapaksa and the members of his party have been acting fearlessly against the threats of the present Leader of SLFP, Maithripala Sirisena. They refused to sit with Government and refused to vote in favour of the Bills presented by their fellow SLFP members in Parliament. They have no care for any repercussions as they already know the limits to the possible actions. Each of the Rajapaksa members already knows that no expulsion has mandated a vacation of Parliamentary seats since 1991. They are also very well informed of the expansion of the definition of the proviso by former Chief Justice Sarath N. Silva in the 2006 case of Ameer Ali vs SLMC, where it was determined that no expulsion will be valid unless overwhelming reasons warranted it.

They are also aware that they are protected as far as they were elected from the UPFA and not the SLFP. The SLFPers are aware of this, just as much as the Mahinda Rajapaksa faction, yet it appears that the drama will continue until the opportune moment.

Only when Mahinda Rajapaksa proves to be a direct threat to Sirisena we will get to see what all of these stacked up chargesresult in.

(The writer is a political analyst and an independent researcher of laws. He holds a Postgraduate Degree in the field of Human Rights and Democratization from the University of Colombo and an Undergraduate Degree in Law from the University of Northumbria, United Kingdom)

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