001-SLLR-SLLR-1983-1-HEWAMANNE-v.-DE-SILVA-AND-ANOTHER.pdf
Hewamanne v. De Silva
1
SC
HEWAMANNE
v.DE SILVA AND ANOTHER
SUPREME COURT
WANASiJNDERA, J., PER ERA, J.,RANASINGHE, J., CADER, J.
AND RODRIGO, J.
S.C. APPLICATION NO. 2/839TH, 10TH, 11TH, 12TH, 13TH,16TH, 17TH, 18TH, 19TH, 20TH,30TH, 31ST MAY, 1ST, 6TH AND7TH JUNE 1983.
Contempt of Court – Publication of a news item prominentlydisplayed under eye-catching headlines – News itemimpeaching the integrity of two Judges of the SupremeCourt and also casting most serious aspersions on theirconduct as Judges – What constitutes Contempt – Can areproduction of a notice of a motion contained in an OrderPaper of Parliament be a contempt?
The respondents the Editor and the owner,Printer iand Publisher respectively of thePublication 'Daily News* were charged with contemptof court in respect of a news item prominentlydisplayed under the headlines, "Select Committeeprobe of Mr. K.C.E. de Alwis' representations" and"F.D.B'b pleadings prepared in Judge's chambers?"published, in the Daily News of 7th March,1983.This news item was a reproduction of a notice of amotion in the Order Paper of Parliament for 8thMarch,1983.
2
Sri Lanka Law Reports
[1983] 1 Sri LR,
The 1st respondent in an affidavit statedthat Justice K.C.E. de Alwis was a member of theSpecial Presidential Commission which recommendedimposition of civic disabilities on Mr.Felix DiasBandaranaike and others.Thereafter Mr Bandaranaikeinstituted proceedings against Justice de Alwis andthe court prohibited Justice de Alwis from func-tioning as a member of the Commission. SubsequentlyJustice de Alwis made representations to HisExcellency the President and the Cabinet decided tomove a resolution in Parliament for the appointmentof a Select Committee.
The 1st respondent also stated that in viewof the public interest and concern on the said sub-ject matter and also its constitutional impor-tance the said Order Paper was published as a news
item on 7th March, 1983 in the Daily News.
The. respondents in this action raised thefollowing arguments-
The freedom of speech and expression which is aFundamental Right of the public, guaranteed byArticle 14 of Constitution, must be given prece-dence over the law of contempt of court.
At present the legal and political sovereigntyof the state vests in the people.Hence the publicmust be afforded a greater right to criticise thejudiciary and accordingly the law of contempt ofcourt has to be reviewed and modified.
Xn English haw a fair and accurate publicationof a document forming part of the proceedings ofthe House is immune from proceedings for contemptor lipel. The said principle is also applicablein Sri- Lanka.
Xn case law, particularly the present Englishcase law, the impugned publication would notconstitute a contempt oL court since now the courts
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Hewamanne v. De Silva
3
allow a greater latitude to the public to criticiseJudges and the administration of justice.
Heicf , Per era, J. and Ranasinghe, J. dissenting
l.The law of contempt of court which had hithertoexisted will,in view of the provisions of Article16 of the Constitution, continue to operate untra-mmelled by the Fundamental Right of speech andexpression.
2(i) Although the legal sovereignty of the State isin the People, the right of the public to get in-volved in discussions on the working of thejudiciary is limited, so as to safeguard theintegrity and impartiality of the judiciary whichis .basic to the administration of justice.
Apart from Article 107 (2) of the Consti-tution, which provides for the Legislature toinquire into the c.onduct of judicial officers,thelaw at all times'allows fair and temperate commentson decisions and the administration of justice.Butthe judges and the judiciary should not be exposedto wide open discussion by the mass media and thegeneral public.
3(i) Our Parliamentary Powers and Privileges Acthas deliberately omitted a provision recognised inEnglish Law, which granted parliamentary pri-vilege to the publication of proceedings of Par-liament. Thus, there is no privilege in our law toprotect the impugned publication.
(ii) There is no unfettered right to publishjudicial and particularly Parliamentary proceed-ings . Even on the analogy of slander and defama-tion cases; such- immunity cannot be conceded .and alibel action between private parties,• is irre-levant to the question of the impugned publica-tion.
Sri Lanka Law Reports
[1983] 1 Sri LR.
The English statutory law and the case law,have laid down the provision that when a publi-cation is of any matter which the law has prohi-bited or which would be incompatible or which would'frustrate the very proceedings, such a publicationwill not be entitled to any qualified privilege.
(i) In Dominion countries the offence of contemptby scandalising the court is very much alive andfar from obsolete.
in England, the offence of contempt byscandalising, the court is not yet obsolete. In therecent past, even in spite of a Change of attitudetowards a more liberal view, the law of contempt is
. still operative and an attack on the honesty andimpartiality of the judiciary has always been heldto be contempt.
In Sri Lanka too, the. offence of contempt byscandalising the court is – still very much in force,especially to preserve the dignity and respect ofthe court.
The statute law of Sri Lanka also recognisesthe offence of contempt against or in disrespect ofthe court.
The impugned publication therefore constitutesa contempt of court. The respondents, by thispublication have committed a contempt of court.
Held further -Per tfanasundera 3,,
"although the Constitution does not specificallyrefer to the press, the provisions guaranteeing the-Fundamental Right of speech and expression to everycitizen are adequate to ensure the freedom of the.press in this country".
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Hewamanne v. De Silva
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6. The power- vested in the Judges tosafeguarti thewelfare andthe security of the people is also adelegated part of thd sovereignty of the People,referred to in Article. .3 and 4 of the Con-stitution.
Contempt against the judges- is therefore an insultoffered to the authority of the People and theirConstitution.
7 i In this instance :4k. theV-defence has not beencommitted calculated ly -■and with.; deliberate inten-tion of: interfering With ' '•* administration ofjustice,- the Court did not [impose ahy punishment.
Per Cader, J.> •
8. “Parliament is a responsible body and Canwell be expected to preserve and foster, the dig-nity of: the Courts in the interest of the public..But an equal duty rests on the Courts •' to. -.safe-guard that same dianitv".
Cases referred to –
Wason V;' Walr,er (.1868 – 69) L,R, 4 Q*B. 73'
Namboodrepad v. Nambier A.I.R. (57) 1970 .
S.C.2015
Leo Roy v. R. Prasad 1958 A.I.R, (Punjab) 377
The State v. Raw Chander Sharma – A.I.R.,(46)1959, 41
Liyanager v. The Queen (Liyanage's. Case). (1965)68 It.LiR, 265
Bribery .Coffltissioner V, Ranasinghe [1965)
A.C.172, (1964)-$$[,
Harrison v. Bush '■ (1855) 5 E & B 344} 119 EE.R.509
R. v. Rule 11937] 2 K.B. 375
Morris v. The Crown Office [1970] 1 AllE.RA079
Skipworth> s Case (1873) L.R. 9 Q.B. 230, 28 LT227
R, v. Davis [1906] 1 K.B. 32
6
Sri Lanka Law Reports[1983] I Sri L.R.
A.C. v. Times Newspaper [1974] A.C. 273,
[1973] 3 All. E.R 54, [1973] 1 All E.R. 815,[1973] 3 W.L.R. 298
Bridges v. California (1941) 314 W.S, 252
Stockdale v. Hansard (1839) 9 Ad, & El (1837)
2 M & Rob 9, 3 St,Tr, (n;s,) 861, 112 E.R, 1112
Mangena v. Edward Lloyd Ltd,, (1908) 98 L.T, 640
M.S.H, Sharma v. Sri Krishna Sinha A.I.R, (46)1959 S.C.395
R, v. bright. 1799 8 T.R. 293, 101-ER 1396
R. v. Lord Abingdon 1794, 1 Esp. 226
Rex v. Creevey (1813) 1 M & S 273
Bromage v. Prosser 4 B & C 247, 107 E.R, 1051
Taylor v. Hawkins 16 Q.B. 321, 20 L.J. Q.B.
314
Davidson v. Duncan 7 E & B:231, 26 4,, J, (Q.B.)106 ' ■
Cook v. Alexander [1973] 3 All E.R, .1037
Sri Surendrg Mohanty v. Sri Nabakr[§bnaChoudhoury A.I.R (46) 1958 Orissa'168
R. v. Border Television Ltd., ex py.-A.C.
68 Cr. App. Rep. 375, (1978^'Crim.L.R.
221Cjw
Attorney General v. Leveller Magauiae (1979)
68 Cr. App. R. 43, [1979] 1 All E j. 745,
2 W.L.R. 247 (H.L.), [1979]%iC. 440
Johnson v. Grant 1923 S.C. 789
Bluemenfield (1912) 28 T.L.R. 308-
Woodgate v. Ridout 4 F &F 202, 176 E.R. 531
Bogouda v. Bawkes Bay Newspapers (1963)
N.Z.L.R. 45, 501.‘J’~
Lucas & Son (Nelson Mail) Ltd., v, &fBrian1978 (2) N.Z.L.R 289 (32) ,R.. v. Client (1821.
4 B & Aid 218, 106 E.R.918 /
Re Evening Star (1884) N.Z.L.R• 3^C. 8
(3i)De Buse v. McCarthy [1942] 1 K.B, 156(3i)Rex v. Rich [1937] 2 K.B. 375(3i)Webb v. Times Publishing Co.,’ [1960] 2 Q.B.
535, [1960] 2 All E.R. 789(3l)King v. Almon (1765) Wila 243, 97 0$R. 94(3() Wede v. Robinson 109 C.L.R. 593
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Hewamanne v. Oe Silva
7
Re The Evening Hews (1880) 1 N.S.W. L.R. 211
R. v. Grail [19G0J 2 Q.B. 36,. [1900] 3 All,
E.R.59
Mc Leod v. St. Aubyn [1899] A.C. 549
Re Vidal« The Times 14th October 1922
R. v. Freeman (1925) Times, 18 November
R„ v. New Statesman (Editor) Ex p DPP (1928) 44
■ T.L.R, 301
R. v. Wilkinson (1930) Times, 16th July
R. v. United Fisherman and Allied Workers'
Union (1963) 2 C.C.C. 257, 65 D.L.R. (2d) 579
R. v. Murphy (1969) 4 D.L.R. (3d) 289
Re Borowski (1971) 19 D.L.R. (3d) 537, 3C.C.C.(2d) 402
A.G, v0 Blundell (1942) N.Z.L.R. 287
R. v. Western Printing and Publishing Ltd.,(1954) 111 C.C.C. 122
Rex v. Wiseman [1969] N.Z.L.R. 55
A.G, v. Re Goodwin (1969) 70 S.R. (N.S.W.)413
R v Metropolitan Police Commissioner ex pBlackburn No. 2 [1968] 2 All. E.R. 319, [1968]
2 Q.B. 150
Thalidomitie Cases Re (11) and Taylor'sApplication [2972] 2 Q.B. 369
Attorney General v. B.B.C. [1981 ] A.C. 303,[1979] 3 W.L.R. 312. [1980] 3 All E.R, 161
The King v. Nicholls (1911) 12 C.L.R. 230
Ambard v. The Attorney General of Trinidad andTobago [1936] 1 All. E.R. 704, [1936] A.C. 322
Debi Prasad Sharma v. Emperor A.I.R. (36) 1943P.C. 202
Rule on P.A. Capper (1896) 1 Br. 317
Rule on Armand de Souza (1914) 18 N.L.R. 41.
Rule on Armand de Souza (1914) 18 N.L.R. 33
Rule on Hulugalle (1936) 39 N.L.R. 294
Veerasamy v. Stewart (1941) 42 N.L,R. 481
Perera v. The King (1951) 52 N.L.R. 293
In Re Wickramasinghe (1954) 55 N.L.R. 511
Vidyasagara v. The Queen (1963) 65 N.L.R. 25(67}M.G. Perera v. A.V. Peiris (1948) 50 N.L.R.
145, [1949] A.C. 1
8,Sri laaka Law Reports[1983] 1 Sri LU j
Cooper v. Union of India A.I.R. (57) 1970 S.C.1318
Macintosh v, Don [1908J A.C. 39Q
Stuart v. Bell [1891] 2 Q.B. 341
Kandoluwe Sumangala v. Mapixigaaq Dharmarakitta(1908)11 N.L.R.195
Re Jayatilaka (l?6i):'63-JiiLvR. 282
James v. Robinson (1963)109 C.L.R. 593
Read and Huggonson Re (St.James' Evening Postcase) (1742)' 26 E.R. 683, 2 Atk 469
R. v. New Statesman ex p B.P.P.. (1928) 44
T.L.R.301
Badry v. D.P.P. of Mauritius [1982] 3 AllE.R.973
The King v. Fletcher Ex p KisCh (1935) 52C.L.R.248
R. v. Mulgaokar A.I.R. 1978 (S.C.) 727
In Re Subrahmanian A. I. R. (30). 1943 Lahore329
$ambhu Nath Jah v. Kedar Prasad Sinha A.I.R.
(59) 1972 S.C. 1515
Re Bahama Islands [1893] A.C. 138
R. v. Colsey (1931) Times, May 9
Steele v. Brannan (1872) L.R. 7 C.P. 261
R. v. Mary Carlile (1819) 3 B & Aid 167, 106E.R. 624
Kielly v. Carson 4 Moore's (P.C.) Reports 1841&5 p. 69
Superintendent and Remembrancer of LegalAffairs, Bihar v.Murali Manohar Prasad (1941)
A2 Cr. L. Jnl 225, A.I.R. (28) 1941 Patna 185
(87Metropolitan Music Hall Co. v Lake (1889) 58L.J. Ch. 513, (1889) 60 LT 749, 5 T.L.R. 329
[n re Cornish, Staff v. Gill (1893) 9 TLR 196
$arat Chandra Biswal v. Surendra Mohanty A.I.R.(56) 1969 Orissa 117
Mlbutt v. General Council of Medical Educationmd Registration (1889) 23 Q.B.D. 400
Rule for an act of contempt of the Honourable
Supreme Court.
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Hewamanne v. De Silva (WanasunderaJ.)
9
Si Nadesan Q.C. with Hiss Suriya Wickramasinghe,S.H.M. Reeza and Kumar Nadesan for the petitioner.K.N.Choksy S.A.A.L., with D.R.N. Jayamaha, HarshaSoza> Ronald Per era»Miss J.P. Rajepakse and
Nihal Fernando for the 1st respondent.
Mark Fernando with M.A. Bastiansz for the 2ndRespondent.
Shiva Pasupathi S.A.A.L. Attorney-General with SuriRatnapala S.S.C., and Kalinga Wijewardena S.C.appeared as Amicus Curiae.
*Cur. adv. vult.
July 28, 1983.v
WANASUNDERA, J.
This is a Rule for an act of contempt of courtissued on the 1st respondent, the Editor of thenewspaper "Daily News", and the 2nd respondent, theowner, printer and publisher of the newspaper, forjointly and severally printing and publishing inthe issue of the Daily News of 7th March , 1983, anews item carried on the front page, prominentlydisplayed under the headings "Select Committeeprobe of Mr- K.C.E de Alwis* representations" and "F.D.B.'s pleadings prepared in Judge’s Chambers?".Prima facie, this news item impeaches the integrityof two judges of this Court and casts the mostserious aspersions on their conduct as Judges. Noreasonable person can come to any other view. Thisnews item was a verbatim reproduction of a noticeof a Motion contained in the Order Paper ofParliament for March 8, 1983, except for two eye-catching head-lines and the introductoryparagraphs. The whole of the news item, however,contained no new material other than what wascontained in the proposed Resolution.
The alleged contempt was brought to our noticeby a petition filed byS.R.K.Hewamanne,an
attorney-at-law. On 16th March 1983, in due course,the petition was taken up for hearing in open
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Sri Lanka Law Reports[1983] 1 Sri LR,
qourt. Mr.Nadesan,Q.C., supported the petition and,?after hearing his submissions,the Courtwas
satisfied that a prima facie case was establishedagainst the respondents and it thereupon directedthe Registrar to issue a Ruleon thetwo
respondents. The Court alsorequestedthe
Attorney-General to appear as amicus and assist the 'Court at the trial.
On 29th March 1983, when the Rule matter wastaken up for trial, the respondents appeared beforeCourt and pleaded not guilty to the charges. Theircounsel submitted that they hadcause toshow
against the Rule. On this occasion all counsel-present agreed that, having regard to the fact thatsome of the legal issuesthat arose for
consideration were of great public importance, itwas desirable that this matterbe heardand
disposed of by a larger bench, so that . an•authoritative decision could be obtained on thoseissues. In deference tor this request the threeJudges before whom the matter came up ( two of whom,are members of the present Divisional Bench)requested the Chief Justice to constitute a largerbench to hear this matter. The present DivisionalBench has assembled consequent to such a directiongiven by the Chief Justice.
The 1st respondent filed an affidavit, . alongwith a number of annexes, in defence of the chargesagainst him. The case has been tried upon thismaterial, as all counsel indicated that, they did,not wish to adduce any further evidence. We called ,upon the respondents to begin.
The submissions of Mr. Choksy, Mr. MarkFernando, and the Attorney- General, which were tothe effect that the offence of contempt cannot beestablished either on the law or the facts, to agreat: extent traverse vomxon ground. When thesesubmissions are exc*iic closely, it seems to me
11
SCHewamanne v. De Silva (Wanasundera,J;!
that the Attorney General andMr.Fernanda
elaborated and dealt more fully with certainaspects of the matters already outlined orforeshadowed by Mr. Choksy. All these argumentscould be summarised broadly.as follows:-
By reason of the fundamental right of the
freedom of speech and expression guaranteed bythe Constitution and its corollary, thecorresponding right of the public to know andbe informed, the newspapers had a right tobring to the attention of the general publicany matter of public interest. Consequently,thisright of the public must be given
precedence over the law of contempt of court.
In any event, having regard to theprovisions of Articles 3 and 4 of theConstitution, which vests in the People boththe legal and political sovereignty of. theState, the People have a right now to partici-pate actively in the administration of the .country, including discussions on the workingof the judiciary. Accordingly the law oncontempt of court has to be reviewed and modi-fied in the light of this shift of sovereigntyto the People, and the public should now beafforded a greater right to critise the judi-ciary.
The Attorney-General submitted. . morespecifically that, having regard to thepractice and principles applicable in the
U.K.., (which he said would also apply here),a fair and accurate publication of a documentforming part of the proceedings of the Houseis immune from proceedings for contempt oflibel. For this he relied primarily on thedecision of Wason v. Walter (1) referred tolater.
12
Sri Lanka Law Reports
[1983] 1 Sri LR.
Under the principles of the ordinary lawof contempt of court as enunciated in the caselaw, particularly in mote recent U.K. casesthe impugned publication would not constitutea contempt of court, since today the courtsallow a greater latitude to the public, tocriticise judges and the administration ofjustice.
The first submission admits of a short and simpleanswer. The Supreme Court is the " highest andfinal superior court of record in the Republic" andhas been established by the Constitution. It isvested with a power to punish for contempt and thispower is found in Article 105 (3). The law ofcontempt, which is a concept known to English lawwas well known in this country from early Britishtimes. This English law of contempt, modified tosome extent in its application here, was inoperation insnediately prior to the coming intooperation of this 1978 Democratic SocialistRepublican Constitution. It had been continued inoperation by the earlier Republican Constitution of1972, which also kept alive the then existing lawof contempt of court. Our Constitution has achapter on fundamental rights, including freedom ofspeech and expression. Those provisions, ifapplicable, may have modified probably to somedegree the existing law of contempt of court, butin view of the provisions of Article 16, it is notnecessary to go into that question in any detail.Article 16, which is one of the Articles containedin the Chapter on Fundamenl Rights, states that-r
"All existing written law and unwritten lawshall be valid and operative notwithstandingany inconsistency with the precedingprovisions of this Chapter."
SOHewamanne- v. Be Silva (WeaasufttleraJ.)13
The short ariswerytherefore^ to Mr. Choksy's firstsubmission is that the-law of contempt of courtwhich had hitherto existed would operateuntrammelled by the fundamental right of freedom ofspeech and expression contained in Article 14.
Even if Article 14 were applicable, Article 14would be subject to any law made by Parliamentrelating to contempt of court. ! do not think thatin any event Article 14 would'' have been of muchavail to Hr. Choksy. Mr. Choksy presented his casewith great restraint and even he did not advocatethe licence to criticise courts obtaining under theAmerican law based on the fundamental rights shouldapply here. The Indian courts have rightly refusedto follow the American decisions in this regard.But, if Mr. Choksy was contending for the principlethat precedence should be given to the freedom ofexpression as against the due administration ofjustice, the views expressed in the Indian case lawmay come as a surprise to him.
Article . 19 (1) (a) of the Indian Constitutionguarantees to every citizen freedom of speech andexpression. This includes the freedom of the Press.Article 19(2} saves existing laws which include thelaw of contempt, provided such laws are consideredreasonable. It would be observed that in India thefundamental right of freedom of expression isdirectly called into play when one has to deal withthe law of contempt.
The Indian courts in a number of decisionshave held that the liberty of the freedom ofexpression and the liberty of the Press should be'subordinated to the independence of the judiciaryand the proper administration of justice.Namboodrepad v. Nambiar (2) Leo Roy Frey v.R.Prasad(3), In State v. Ram Cbander (4), the Courtsaid:
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Sri Lanka Law Reports
[1983] 1 Sri LR.
" Freedom of press, liberty of speechand action so far as they do not contravenethe law of contempt are to prevail without•let or hindrance. But. at the same time themaintenance of the. dignity of the courts isone of the cardinal principles of the rule oflaw in a free democratic country and when thecriticism which may .otherwise be couched inlanguage that appears to be mere criticismresults in undermining the dignity of courtsand the course of justice in the land, itroust be held repugnant and punished. NoCourt can look on with equanimity on a publi-cation which may have the tendency to inter-fere with the administration of justice."
These views expressed by the Indian courtsare relevant not only in the context of thissubmission, but also spill over td the othersubmissions made by the respondent. This brings methen to the second submission on which Mr.MarkFernando laid great emphasis.
The respondents have argued that, with theshift of sovereignty from the Queen to the People,as found in the present Constitution, the Peoplewould now have a supervisory interest over the acts"of the Government and of its components; this wouldinclude the right of discussion aed criticism andwould enable the people to participate in theprocess of Government in a more meaningful way thanunder any previous Constitution. In particular, MrFernando submitted that, since both Parliament andthe Supreme Court derived their ultimate authorityfrom the People by virtue of Articles 3 and 4 ofthe Constitution, they were answerable tc thePeople and that today both the People andParliament as the People's representatives had aright to be interested in the administration ofjustice, in a manner and to a measure that did notexist prior to 1972.
SCHewamanne v. De Silva (WanasunderaJ.I15
The first respondent in the affidavitfiled before us has mentioned the ' appointment ofthe Special Presidential Commission comprisingJustice J.G.T.Weeraratne, Justice S. Sharvanandaand Justice K.C.E. de Alwis; the recommendation theCommission had made for imposing civic disabilitieson Mrs Sirima Bandaranaike, former Prime. Ministerand at that time a member of Parliament, and onFelix R. Dias Bandaranaike; the consequent Reso-lutions in Parliament in imposing such civic,disabilities and the expelling of Mrs SirimaBandaranaike from the House. Those acts theaffidivit stated aroused great public . interestand were given wide publicity. As a sequel tothese events, proceedings against members of theCommission had been instituted in Court by theformer Prime Minister and the former Minister ofJustice to have these findings invalidated.
• Thereafter, on or about 9.th July 1982, Mr..Felix R.Dias Bandaranaike instituted proceedingsfor the issue of a writ of Quo Warranto against MrJustice K.C.E. de Alwis, a member of theCommission, on the ground that the latter hadbecome disqualified from acting as a member of theCommission by reason of a financial transactionwith one A.H.M. Fowzie, a former Mayor of Colombo,whose conduct was a subject of investigation by theCommission. This application was heard by a benchconsisting .of the Chief Justice, Justice D.Wimalaratne and Justice Percy Colin Thome. Themajority- Justices Wimalaratne and Colin Thome -directed the issue of a writ of Quo Warrantoagainst Justice K.C.E. de Alwis, prohibiting himfrom functioning any further as a member of theCommission. ->
. . • j ■ •
Subsequently, Justice K.C.E.de Alwis maderepresentations to His Excellency the Presidentalleging bias against himself on the part .ofJustices Wimalaratne and Percy Colin Thome, and
16Sri Lanka Law Reports[1983] 1 Sri LR.
—
asked for an inquiry.These events which counseldescribed as unprecedented aroused further publicdiscussion. The Bar Association had discussed theproposal to appoint a Special PresidentialCommission, but expressed objection to theproposal. A Cabinet decision to the effect that theMinister of Justice would move a Resolution inParliament on 8th March 1983 for the appointmentof a Select Committee of Parliament to investigateand report on the allegations made by Mr K.C.E. deAlwis was announced to the press, at the weekly.Press briefing given by the Minister of State. Theproposed motion was included in the Order Paper ofParliament for Tuesday* March 8th, 1983.
In accordance with the prevailing,practice of sending copies of Order Papers toMembers of Parliament,newspapers, certain officialsand institutions.( according to a distribution listcompiled by the. Secretary General), the first printof the Order Paper was delivered to the 2ndrespondent on Sth March 1983. It is not claimedthat this publication was done under the authority,of Parliament.
The 1st respondent states that in viewof the public interest and concern in thesubject matter its constitutional importance andthe people's right to know that such a Resolutionwas before Parliament., he decided to publish thisnews item on the front page of the Daily News of7th March 1983.
The 1st respondent also states thatcertain of the questions referred to the SelectCommittee for inquiry and report were already wellknown to the public. Two new questions had emerged.And accordingly the news ' item prepared in hisoffice under his direction* and supervision gaveprominence and emphasis to these two new questions.The 1st respondent states that, since the news
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Hewamanne v. De Silva (WanasunderaJ.)
. 17
item concerns a pending inquiry, he ensured thatthe news item was purely factual and did notcontain any comments.
Both counsel for the respondents stressedthe public interest in the events stated above andelaborated. on the right of the public to beinformed so that any member of the public, if he sowished, could go to his Member of Parliament andmake representations in this matter, which wasundoubtedly one of great public importance.
Mr. Nadesan challenged some of the facc-rual statements and submissions. He denied thatthe news item was published bona fide withoutan intention to commit contempt of court. All theevents which were subsequent to the publication on7th March 1983 like the debate in Parliament, MeNadesan said, were irrelevant to the issue underconsideration, except perhaps as a factor to beconsidered in imposing punishment. Mr. Nadesan alsodrew our attention to the wording of the 1strespondent's affidavit and said that though therewas an averment that the public were interested inthese events, he did not find any expressstatement to the effect that this publication wasfor the public benefit or in the interest of thepublic.
Mr. Nadesan also stated that the mass ofmaterial produced by the respondents to show publicdiscussion of these events in the media revealthat Mr. K.C.E. de Alwis had made a generalcomplaint of prejudice and none of the serious andspecific allegations now contained in the motionhad earlier appeared in the. media.The prominentheadlines picking out. two sensational items hadbeen done by the 1st respondent with full knowledgeof its. implications so as to give .the . news itemthe maximum publicity. He said that counsel for the1st respondent admitted that one of. the allegations
Sri Lanka Law Reports
[1983] 1 Sri LR.
18
b-
was of a shocking nature and the 1st respondentthought that for that reason it would be a matterin which the public would be greatly interested.Mr.Nadesan also submitted that the argument thatthis was done in the public interest to enable thepublic to participate and indicate their views onthis matter was a specious argument, because thenews item appeared on the day immediately precedingthe Parliamentary proceedings and gave hardly anytime to the public to make any usefulrepresentations. The motion which was reproducedalso did not sufficiently indicate the particularsor the evidence supporting the allegations so thatit would have been difficult for the generalpublic to be of real assistance in this matter.Further, what was placed before the House was amere resolution regarding a formal inquiry to beheld by a Select Committee on a later date. Ifrepresentation were permissible at all, the properauthority should be to the Select Committee and theproper time when its sittings began. The affidavitalso states that a Select Committee has nowcommenced sittings on the matter, and we understandthat those sittings are being held in .camerawithout publicity.
It seems to me that the people's right toknow,upon which the respondents claim the right topublish,has ultimately to be decided as a legalissue upon the interpretation of the Constitutionand other applicable legal provisions. How validthen is the respondents' submission that under – thepresent Constitution the public enjoys a greaterright than before to discuss, criticise andparticipate in the administration of justice?
The submission that since 1972 there hasbeen a radical shift of the legal sovereignty ofthe State from the Queen to the people isundoubtedly well founded. The people in theexercise of their, franchise now select the
SCHewamanne v. De Silva IWanasunderaJ.)19
President (who is the head of the Executive) andalso Parliament by diriect elections. These twoelected representatives of the people thereforeexercise the powers, of Government by virtue of ainandate periodically given by the people. Ittherefore follows that the acts and conduct ofsuch representatives must be accountable to thePeople and this means that they would be subject tocriticism and discussion by the People. In. fact,modern social and political conditions demand acontinuous dialogue between the People and theirelected representatives who hold a mandate fromthem.
How does the Judicature stand in thematter? Even a cursory glance at the Constitutionis sufficient to indicate that there are featuresin the Judicature and in the Administration ofJustice which distinguish the courts and judgesfrom other organs of government and other publicofficers. Mr.Nadesan invited cur attention in thisconnection to the Preamble to the Constitutionwhich is a concise statement of its genesis . ThisPreamble recites the Mandate given by the Peopleto the founding fathers of the Constitution. Itassures to all peoples, freedom, equality, justice,FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OFthe judiciary as the intangible heritage . thatguarantees the dignity and well being ofsucceeding generations of the People of Sri Lanka.These principles constitute the basic fundamentalrights of the People and were thought by the Peopleto be.so valuable and sacrosanct that they wereenshrined in the inandate and repeated in bold typein the Preamble.- It is significant that both"Justice" and " the Independence of the Judiciary"are given particular emphasis and Mr. Nadesan saidthat, as far as he is aware, in no otherConstitution is the independence of the judiciaryemphasised to this degree or given that importance.
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[1983] 1 Sri LR.
When we next examine the body of theConstitution, we see that aspirations of thePeople for an independent judiciary are givenprecise legal form and effect. Article 4(c) statesthat –
"(c) the judicial power of the Peopleshall be exercised by Parliament throughcourts, tribunals and institutions createdand established, or recognised, by theConstitution, or created and established bylaw, except in regard to matters relating tothe privileges, inmunities and powers ofParliament and of its Members, wherein the.judicial power of the People may be exerciseddirectly by Parliament according to law.”
On a plain reading of this provision, it isclear that the judicial power of the People canonly be exercised by "judicial officers" as definedin Article 170, except in regard to mattersrelating to the. privileges, immunities and powersof Parliament. I ..think no counsel before usdisputed that these provisions indicate anunmistakable vesting of the judicial power of thePeople in the judiciary established by or under theConstitution and that Parliament acts as a conduitthrough which the judicial power of the Peoplepasses to the judiciary. Whatever the wording ofArticle 4 (c) may suggest, there could , be .littledoubt that at the lowest this provision, read withthe other provisions, has brought about afunctional separation of the judicial power fromthe other powers in our Constitution andaccordingly the domain of judicial power (exceptthe special area carved out for Parliament), hasbeen entrusted solely and exclusively to thejudiciary.
Hewamanne v. Da Silva (Wanasundera^J.)
21
SC
. One of the cases relied on by both Mr.Nadesan and Mr. Mark Fernando was the judgment oftHe Privy Council in Liyanage's case (5). relatingto the separation of powers under the SoulburyConstitution of 1946. In that case the PrivyCouncil observed
"…But the importance of securingthe
independence of judges and. maintaining .'’■thedividing line between the judiciary and trie .executive ( and also, one should . add;.|the:.legislature) was appreciatedbythose
who framed the Constitution" (see -BriberyComissioner v.Ranasinghe)(6).The
Constitution is .significantly dividedinto
parts•’Part 2 The Governor-General'j /Part '3 .
The Legislature ', 'Part 4 Delimitation, ofElectoral Districts*,1 Part 5 The Executive','Part 6 The Judicature*, 'Part 7 The Public.Service', 'Part 8 Finance', And although ' noexpress mentidn is made of vesting in thejudicature thejudicial powerwhichit
already had and was wielding in its dailyprocess under the Courts Ordinance, there is~provision under Part 6 for the appointment .of judges by a Judicial Service Commissionwhich shall not contain a member of either■House but shall be composed of the ChiefJustice.-and ■ a 'Judge and another person who ispr shall have beep a judge. Any attempt toinfluence any decision of the C-eps&lssion is-'made a criminal offence. There is alsoprovision that judges shall not be removableexcept by the Governor-General on an addressof both Houses.
These provisions manifest an intentionto secure in the judiciary a freedom frompolitical, legislative and executive control.
They, are wholly appropriate -in a Constitutionwhich intends that judicial, power shall be
22Sri Lanita Law Reports[1983JJ Sri L.R,"
vested only in the. /judicature. They would, beinappropriate in a Constitution by which itwas intended that judicial power should . beshared by the executive.or the legislature.The Constitution's silence as to the vestingof judicial ..power is consistent with itsremaining, where it had lain for more than acentury, in the hands bf the judicature. Itis not consistent with any intention thathenceforth it should pass to, or be sharedby, the executive or the legislature."
If we examine the present Constitution theidentical features making for a separation of thejudiciary from the other organs of the governmentindicated by the Privy Council are found to bepresent. We find Chapters VII,VIII and IX areheaded, 'The Executive'. Chapter VII relates to thePresident, Chapter VIII to 'The Cabinet ofMinisters' and Chapter IX to 'The Public Service!Chapter X, XI and XII all deal with theLegislature. Chapter X relates to Parliament,-Chapter- Xr.t;o .the Procedure and Powers of theLegislature and Chapter XII to the Amendment of insConstitution. Chapter XV and XVI deal with theJudiciary. Chapter XV is headed ' The Judiciary'and contains a separate section entitled'Independence of the Judiciary'. Chapter XVI isheaded ' The Superior Courts' and contains twoparts – one relating to the Supreme Court and theother relating to the Court of Appeal. As under the1946 Order in Council* we find the provisions forthe appointment, transfer and disciplinary controlover the minor judiciary vested in an independentJudicial Service Commission consisting of theChief Justice and two Judges of the Supreme Court.In the Soulbury Constitution, one member could bea retired judge, but today the position is evenbetter. Article 116 states that any interferencewith the exercise of judicial powers is an offence.Article 107 provides that a judge of the Supreme
sc
' Hewamarine v. De Silva (Wanasundera^J.)
23
Coart and the Court of Appeal shall hold officeduring good behaviour and shall not be removedexcept by an order of the President, made after anaddress of Parliament supported by a majority ofthe total number of members of Parliament(including those not present).
These constitutional provisions haveestablished and constituted the Judiciary as oneof the three principal organs of the State and havealso proceeded to ensure the independence of thejudiciary as its essential feature. The peculiarstanding and position of judges in our Constitutionare very much similar to the position of judges inthe U.K. Sir Winston Churchill, in a speech made inthe House of Commons when the increase of thesalaries of judges was being discussed in theHouse, described with his characteristic eloquencethe unique position the judges occupy in theframework of government. The quotation is takenfrom a lecture entitled "Independence andImpartiality of Judges" given by Lord Denning atthe Faculty of Law Witswatersrand University,S.Africa, and contained in S.A.L.J., page 349;
"There is nothing like them at all inour island. They are appointed for life. Theycannot be dismissed by the executiveGovernment. They cahnot be dismissed by theCrown either by the Prerogative or on theadvice of Ministers. They have to interpretthe law according to their learning andconscience. They are distinguishable from thegreat officers of State and other servantsof the Executive, high or low, and from theleaders of commerce and industry. They arealso clearly distinguishable from the holdersof less exalted judicial office. Nothing butan address from both Houses of Parliament,assented to by the Crown, can remove them."
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Sir Winston continued:
"The principle of the completeindependence of the Judiciaryfromthe
Executive is the foundation of many thingsin our island life. It has been widelyimitated in varying degrees throughout thefree world.lt is perhaps one of the deepestgulfs betweenusand allforms of
totalitarian rule. The only subordinationwhich a judge knows in his judicial capacity. is that which he owes to the existing bodyof legal doctrine enunciated in years pastby his brethren on the bench, past andpresent, and upon the lawspassed by
Parliament which have received the Royalassent. The judge has not only to do justice^ between man and man. He also – and this isone of his most important functionsconsidered incomprehensible in some largeparts of the world – has to do justicebetween the citizens and the State . . . TheBritish Judiciary, with its traditions andrecord, is one of the greatest living assetsof our race and people and the independenceof the Judiciary is a part of our message tothe ever-growing world which is rising soswiftly around us." (M.C.Debates, 23rd March1954, column 1061)
The proper administration of justice requiresjudges who are skilled and learned. It is even moreimportant that their decisions are honest andiapartial and are grrived at without pressures orinterference however slight or from whateverquarter. For, truly, justice must not only be donebut it must also appear to be done. Thirdly, thepublic must have an abiding confidence in the'purity of the administration of justice. Apart fromthe lav, it is, I believe, for these reasons thatthe public generally refrain from indulging in
SCHewamannev. De Silva (Wanasundara.J.)25•
public discussion of the acts and conduct of judgesor do not discuss them to the same degree as otherpublic officers. The Constitution and the Statehowever afford other channels to the public toregister their complaints against judges. TheJustice Report (1959) under the -Chairmanship ofLord Shavcross recommended that the appropriatemeans of making a bona fide complaint againstjudges was a letter to the Lord Chancellor or tohis member of Parliament.
In Harrison v, Bush (7), followed in R. v. Rule(8), the defendant, an elector and an inhabitant ofa borough, bona fide signed (with other persons)and sent totheHome Secretary,amemorial
complaining of the conduct of the plaintiff, aMagistrate for the county in which the borough wassituated. It was held that the memorial wasprivileged. "If" said Lord Campbell, C.J., "Dr.Harrison hassomisconductedhimselfas a
Magistrate, he had committed an offence; and it wasthe duty of those who witnessed it to try by allreasonable means in their power that it should be
inquired into and punished…. In this land of
law and liberty all those who are elected withpublic authority may be brought to the notice ofthose who havethepower and thedutytoinquire
into it and totake steps whichmayprevent the
repetition of it." I
I would like to digress at this stage toclear a misconception based on a general statementthat at one stage appealed to one of my brothers, „namely, that proceedings for the removal of a judgeshouldbe heldin public.This couldbe
misunderstood as an alternate and much narrower wayof stating the public interest in this matter, butis really based on an isolated remark made in acase. This general statement is clearly referableto the historical development which ledto
safeguards being provided in regard to the removal
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[1983J1 Sri LR.
of judges and does not have the wider connotationnow suggested. At one time the Sovereign claimedthe right to dismiss judges, who incurred hisdispleasure, at his will and pleasure. The pleasureprinciple was contested and replaced by theprinciple that a judge could only be removed formisconduct.
If the matter remained there it would stillhave been open to the Executive to remove a judgeunjustly on the pretext that the Executive issubjectively satisfied that misconduct has beenestablised in a given case or by holding someunfair administrative inquiry behind closed doors.As a further safeguard against abuses of thisnature, the Constitutions of democratic states nowprovide for a fair and formal inquiry to be held byan impartial tribunal of the highest level.Generally it is the Legislature itself which willhold this inquiry. Our Constitution framed onthese Tines provides that a judge could be removedon the ground of proved misbehaviour or incapacity.Vide Article 107(2) of the Constitution;
”107.(2) Every such judge shall hold officeduring good behaviour, and shall not beremoved except by an order of the Presidentmade after an address of Parliament,supported by a majority of the total numberof Members of Parliament (including those notpresent) has been presented to the Presidentfor such removal on the ground of provedmisbehaviour or incapacity;
Provided that no resolution for thepresentation of such an address shall beentertained by the Speaker or placed on theOrder Paper of Parliament, unless notice ofsuch resolution is signed by not less thanone third of the total number of Members of
SCHewamanne v. De Silva (Wanasundera,J.).27.
Parliament and sets out full particulars ofthe alleged misbehaviour or incapacity."
See also Indian Contempt of Court Act, No. 70 of1971.
This is the public inquiry the Constitutionhas in mind, namely, one held by therepresentatives of the People at the highest leveland not by the Executive, and the removal to bedecided only after a debate in the House to whichthe public are generally admitted. In this contextit would be far-fetched to argue that each andevery member of the public should be afforded anopportunity of directly and actively participatingat such an inquiry or that it should be carried outin the open before the public from the beginning tothe end. Even if some publicity is permissible fromthe point charges are framed and even this isdebatable -there is no warrant at all for publicityto be given to the preliminary proceedings thatlead to the formal inquiry unless there is a primafacie case and the public airing of everycomplaint, many frivolous and vexatious, can dountold harm to the image of the judiciary.
To resume the discussion on the main issue,namely the freedom of speech in relation to theadministration of justice, the following passagefrom judgments in the U.K. throw considerable lighton the problem:
In Morris v. Hie Crown Office (9) Salmon J., said:
"Everyone has the tight publicly to protestagainst anything which displeases him and publiclyto proclaim his views, whatever they may be. Itdoes not matter whether there is any reasonablebasis for his protest or whether his views aresensible or silly. He can say or write or indeedsing what he likes when he likes and where helikes, provided that in doing so he does not
28 Sn Lanka . Law fieports [1983] 1 Sri LR.
infringe the rights of others. Every member "of thepublic has an inalienable right that our courtsshall be left free to administer justice withoutobstruction or interference from whatever quarterit may come. Take away that right and freedom ofspeech together with all the other freedoms wouldwither and die, for in the long run it is thecourts of justice which are the last bastion ofindividual liberty.. The appellants, rightly orwrongly, think that they have a grievance. They areundoubtedly entitled to -protest about it, butcertainly not in the fashion they have chosen.In an attempt, and a fairly, successful attempt togain publicity for their cause,they have chosen todisrupt the business of the courts and havescornfully trampled on the rights which everyonehas in the idue administration of justice; and forthis they have been very properly punished, iso thatit may be made plain to all that such conduct willnot be tolerate^ – even by students. The archaicdescription of these proceedings as ’contempt ofcourt* is in my view unfortunate and misleading. Itsuggests that they are designed to buttress thedignity of the judges and to protect them frominsult. Nothing could be further from the truth. Nosuch protection is needed.The sole purpose ofproceedings for contempt is to give our courts thepower effectively to protect the rights of thepublic by ensuring that the administration ofjustice shall not be obstructed or prevented(Skipworih's Case(10) and /?. v Davies ,(11). Thispower to commit for what is inappropriately called’contempt of court' is sui generis and has fromtime immemorial reposed in the judge for theprotection of the public "
The following passage from Lord Simon's opinionin A.G. v. Times Newspaper (12), where the matteris approached in terms of fundamental norms is evenmore persuasive:
SC Hewamahne v. De Silva (WanasunderaJ.) _~29
The first public interest involved is that offreedom of discussion in democratic society.People cannot adequately influence thedecisions which affect their lives, unless theycan be adequately informed of facts andarguments relevant to the decisions. Much ofsuch fact finding and argumentation necessarilyhas to be conducted vicariously', the publicpress being the principal. ..instrument; .;This-.Jisthe justification for investigative andcampaign journalism. Of „ course it – can ' beabused – but so may anything of value. The lawprovides some safeguards against abuse;'thoughimportant ones (such as professional proprietyand responsibility) lie outside the law.
" The law as to contempt of court isnot one of the legal safeguards against abuseof the public's right (arising.from the verynecessity of democratic government) to beinformed and to hear argument, before arrivingat a decision. The law of contempt of courtis a body of rules which exists to safeguardanother, quite different,,institution of.civilised society. It is the. means by whichthe lav/ vindicates the public interest in dueadministration of justice – that is, in theresolution of disputes, Mit by force of byprivate or public influence, but. by Indepen-dent adjudication in couftd of law accordingto an objective code. the alternative isanarchy (including that femialiatic anarchywhich results from arrofation. to determinedisputes by other than those charged- by so-ciety to do so in impartial arbitrament accor-ding to an objective code).
The objective code . may well bedefective,either generally of in particularcircumstances indeed, sinca it id a humanproduct, it is inherently likely to be
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defective in at least some circumstances. Itsmethod of application, also being subject tohuman fallibility, is likely to be less thanperfect. Nevertheless it is the essence of thedue administration of . justice that thisobjective code should be allowed to be appliedby those charged by society with applying it,-until it, or its method of application, isduly changed.
The foregoing seems to me to arise from thevery nature of the judicial process and itsfunction in society………. "
The Times case (supra) no doubt, dealt with thenarrow point of the pre-judgment of a case byreason of public discussion of the issues of thecase.This was found to be wholly objectionable andamounting to a contempt of court. The reasoning isthat the public has delegated its decision makingto the courts, namely to the trained personnel whoman them, and the public has no right to interferewith the acts' of the delegate as long as thedelegation continues.
Even the Court of Appeal condemned "trial bynewspaper" and the difference between the views ofthe two courts lay not so much in principle butas to where the line should be drawn when a courtshould say that public discussion beyond that stagewill be regarded as damaging. The necessity to lookat the matter somewhat narrowly even in the Houseof Lords is no doubt due to the prevailingattitudes there, where the tendency is to give thewidest latitude for public discussion. The sameneed not apply here.
The House of Lords did however refer to thefar-reaching side effects of prejudgment, namelyits long term effects of creating a generalatmosphere of disrespect for the law and the
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31
courts. If public pressure on pending litigation isconsidered to be pernicious, how much moredesirable is it to avoid any disparagement of thejudge himself, who is the controlling element ofthe whole toechanism. Allegations of dishonesty • andimpartiality cannot but undermine the very basis ofhis functions as a judge. The dicta of the House ofLords, though given in relation to the narrow issueof prejudgment, has wider implications and cancertainly be called in aid in the present matter.
Let me now look at certain other passages fromthe judgment of the House of Lords, bearing theabove observations in mind. At page 81 Lord Simonadded:
"The public interest in freedom of discussion(of which the freedom of the press is oneaspect) stems from the requirement thatmembers of a democratic society should besufficiently informed that they may influenceintelligently the decisions which may affectthemselves. The public thus has a permanentinterest in the general administration ofjustice and the general course of the law.This is recognised by justice being openlyadministered and its proceedings freelyreported, by public debate on the law and onits incidence. But, as regards particularlitigation, society, through its political andlegal institutions, has established therelevant law as a continuing code, and hasfurther established special institutions(courts of law ) to make the relevantdecisions on the basis of such law. The publicat large has delegated its decision making inthis sphere to its microcosm, the jury orjudge. Since it would be contrary to thesystem for the remit to be recalled pendentelite, the paramount public interest pendentelite is that the- legal proceedings shouldprogress without interference."
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The dangers of permitting public discussion ofissues before court are elaborated by Lord Reid inthe following words
"I think that anything in the nature ofprejudgment of a case or of specific issues init is objectionable not only because of itspossible effect on that particular case butalso, because of its side effects which may befar reaching. Responsible 'mass media' will dotheir best to'be fair, but there will also beill-informed, slapdash or prejudiced attempts,to influence the public. If people are led tothink that it is easy to find the truth,disrespect for the process of the law couldfollow and, if mass media are allowed tojudge, unpopular people and unpopular causeswill fare very badly. Most cases of prejudgingof issues fall within the existing authoritieson contempt. I do not think that the freedomof the press would suffer"
On the same lines we find Justice Frankfurter'spowerful dissent in Bridges v. California (13)which is also worthy of reproduction:
" A trial is not a ’ free trade in
ideas' noristhe best test of truthin
courtroom'thepower of the thought toget
itself accepted in the competition of themarket' … A court is a forum with strictlydefinedlimits – for discussion.Itis
circumscribed in the range of its inquiry andin its methods by the Constitution, by lawsand by age old traditions. Its judges are. restrained in their freedom of expression byhistoric compulsions resting on no otherofficialsofgovernment. Theyareso
circumscribed precisely because judges have intheir keeping the enforcement of rights and
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Hewamanne v. De Silva (Wanasundera,J.)
33
the protection of liberties which according tothe wisdom of the ages can only be enforcedand protected by observing such methods and
traditions The Fourteenth Amendment does
not forbid a State to continue the historicprocess of prohibiting expressions calculatedto subvert a specific exercise of judicialpower.So to assure the impartialaccomplishment of justice is not an abridgmentof freedom of speech or freedom of the pressas these phases of liberty have heretoforebeen conceived even by the stoutestlibertarians. In fact, these libertiesthemselves depend upon an untrammelledjudiciary whose passions are not evenunconsciously aroused and whose minds are notdistorted by extra-judicial considerations.
Of course freedom of speech and of the pressare essential to the enlightenment of a freepeople and in restraining those who wieldpower. Particularly should this freedom beemployed in comment upon the work of courts,who are without many influences ordinarilymaking for humour and humility, twin antidotesto the corrosion of power. But the Bill ofRights is not self destructive. Freedom ofexpression can hardly carry implications thatnullify the guarantees of impartial trials.And since courts are the ultimate resorts forvindicating the Bill of Rights, a State maysurely authorize appropriate historic means toassure that the process for such vindicationbe not wrenched from its natural tracks intothe more primitive melees of passion andpressure. The need is great that courts becriticised, but just as great that they beallowed to do their duty."
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The pernicious impact that public discussion mayhave on the judicial process in its subjectiveaspect cannot be discounted^ Such public discussionwould also engulf the judges and they would findthemselves in a position where they v/ould bedirectly exposed to the passing winds of popularexcitement and sentiment. The words of anothergreat American Supreme Court Judge and a Jurist inhis own right, Justice Cardozo, exposing thisdanger, would be pertinent here:
"Historic liberties and privileges are not tobend from day to day because of some accidentof some immediate overwhelming interest whichappeals to the feelings and distorts judgment.A country whose judges would be willing togive it whatever law might gratify the impulseof the moment would find that it had paid toohigh a price for relieving itself of thebother of awaitingasession of the
Legislature and the enactment of statute inaccordance with established forms."
The import of these passages is clear. They showthat there is a consensus that in the hierarchy ofvalues and principles that sustain a democraticsociety, preponderance must be given to the properfunctioning of the administration of justice, asthis is central to the very functioning of theState as a civilized and ordered society. Theintegrity and impartiality of the judge are basicto the very conception of the administration ofjustice: Therefore the reasoning in the passages•cited is no less valid in the present situation asin the circumstances referred to in those cases.This cannot in any way imply that judges are abovethe law. Apart from the authorised channelsavailable for making complaints, the law at alltiiJes allows fair and temperate comments ondecisions and the administration of justice.I am
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Hewamanne v. De Silva (Wanasundera,J.)
35
therefore unable to assent to the proposition thatjudges and the judiciary should be exposed for wideopen discussion by the mass media and the generalpublic. The latter view, I believe, would in thelong term be actually counter productive anddestructive of the public welfare.
I shall now turn to the third ground set outearlier. Counsel for the respondents and theAttorney-General developed their arguments on thebasis that what was published was " a proceeding ofParliament". I take it that in formulating theirarguments in terras of this expression, well knownin constitutional law, they sought to takeadvantage of Parliamentary privilege and rely on itas automatically covering this publication.Conceding that the motion is "a proceeding inParliament", because it concerns the internalbusiness of Parliament with which no outsider caninterfere, the question is: Does the privilege ofParliament as expressed in Article 9 of the Bill ofRights 1688 apply to this publication,which hasbeen done outside Parliament and by a person notconnected with the House?
The expression "a proceeding of Parlia-ment’' is taken from Article 9 of the historicBill of Rights, which was declaratory of certainimportant privileges asserted by Parliament andwhich Parliament managed to wrest from the monarch,not without fierce struggle. The Bill of Rightsprovided that –
" freedom of speech and debates or
proceedings in Parliament ought not to beimpeached or questioned in any court or placeout of Parliament."
As the wording indicates, this confirmed thelong-standing claims of Parliament to exclude anyoutside interference within its walls (Erskine May,16th Edn, p. 59) and to allow Parliament — meaning
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the members individually and the House generally -absolute freedom in the conduct of its business.
But there are acts which may be performedby members or the House falling outside the abovecategory. There could also be acts having someconnection with Parliament, performed by outsidersoutside the four walls of Parliament, either withthe authority of the House ' or without suchauthority such as the publication of Parliamentaryproceedings. Parliament claimed such a privilege inrespect of the publication of parliamentary paperswhen published by the authority of the House, butthis was denied by the courts. In this second- phaseof its struggle for the recognition of its rights,Parliament came in to collision with courts. Itcommenced with the encounter in the first Stockdalev. Hansard case (14), but fortunately was resolvedto a great extent by the enactment ofthe
Parliamentary Papers Act 1840 (3 & 4 Viet. c.9). Itshould be noted that the privilege claimed was inrespect of publications authorised by the House. Atno time has the House claimed privilegefor
publications not authorised by it as in the presentcase.
A publication of a proceeding in Parliament,using the expression in the widest sense,(technically "speech, debate and proceeding inParliament" in the Bill of Rights carry differentconcepts), has to be considered in three aspectsfor the purpose of any worthwhile discussion. Thefollowing break-down would be a convenient methodof treatment:
In relation to the privileges of Parliamentwhich should again be dealt under two heads;
i.e. (i) Parliament's sole right to publishor authorise the publication of its
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Hewamanne v. De Silva (Wanasundera,J.)
37
proceedings and to punish as a breach of.privilege any transgression of this right.
(ii) The duty of the courts to recognise sucha privilege or extended privilege granted bystatute.
In relation to ordinary civil proceedings inthe courts such as in a libel action betweenprivate parties where no privilege as in (a) (ii)exists.
In relation to the offence of contempt ofcourt.
Such discussion would help to place the issuebefore us in its proper perspective.
In this connection it should be emphasisedthat a privilege designed for one type of act wouldnot cover a different type of act, e.g., the'privilege of freedom of speech and the privilege ofpublication are two separate privileges.A privilegeis restricted strictly to the • particularsubject matter it is meant to apply to, and any actoutside it would not enjoy that protection. Just togive one illustration of this, may I refer toMangena v. Edward Lloyd (15), where Darling,J..after referring to the Parliamentary Papers Actwhich protected the printing and distribution ofcopies of parliamentary papers said: "it gives noprotection to people who publish what is in a Blue'Book by other means than by printing that is byreading it out at a meeting for example …"
As regards (a)(i) above, the existence of sucha right must now be accepted. The Resolution of1971 of the Commons clearly establishes this. Videalso the careful survey of precedents tracing thisprivilege in the judgment of Chief Justice S.R.Das
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of the Indian Supreme Court in M.S.M.Sharma v. Sri-Krishna Sinha (16), The present practice in theU.K. as regards this privilege is modified by thesaid Resolution passed in 1971, which, whilereciting that right, states that "notwithstandingthe resolution of the House on 3rd March , 1762 andother Resolutions, this House will not entertainany complaint of contempt of the House or breachof privilege in respect of the publication of thedebates or proceedings of the House or of itsCommittees except when any such debates orproceedings shall have been conducted with closeddoors or in private or when such publication shallhave been expressly prohibited by the House." Anearlier Resolution to this same effect in May 1875by Lord Hartington…had been rejected by the House.In this connection see our legislation:Parliamentary Privileges & Powers Amendment Act, No.17 of 1980.
Although this resolution does not amount toan abandonment of this privilege – the resolutioncan be rescinded by the House at any time – suchpublications of debates or proceedings by outsiderstoday would not run the risk of action by theHouse. This is in so far as Parliamentary pri-vilege is concerned. They may also stand on asteadier ground than before in ordinary litigationbefore the courts and would justify to some extentthe calculated risk the courts took when theyviewed such publication as having the toleration,if not the implied authority of the.House. This iswhat Cockburn., C.J. said in Wason's case (1).
"Practically , such publication is sanctionedby Parliament. It is essential to the workingof our Parliamentary system and to the welfareof the nation. Any argument founded on itsalleged illegality appears to us, therefore,entirely to fail. Should either House ofParliament ever be so ill-advised as to
sc
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Hewamarine v. De Silva (Wanasundera,J.)
39
prevent its proceedings from being made knownto the country – which certainly never will bethe case-any publication of its debates madein contravention of its orders would be amatter between the-House and the publisher.Forthe present purpose, we must treat suchpublication as in every respect lawful andhold that while honestly and faithfullycarried on, those who publish them willfree from legal responsibility."
It would be seen that this judgment wastherefore based on not too firm a foundation,though it is now accepted as good law. Even thelearned Chief Justice was constrained to admit theexistence of suc-h a right in Parliament, but hopedthat Parliament would be restrained in the exerciseof that power or that circumstances would militateagainst Parliament exercising such a privilege.This flaw in the Chief Justice's reasoning isbrought out by Frank Thayer in his book LegalControl of the Press, page 31, apparently writtenprior to the Resolution of 1971:
"Parliamentary privileges as part ofthe unwritten English Constitution is theexclusive right of either House to decide whatconstitutes interference with its duties, itsdignity, and its independence. Its power toexclude strangers so as to secure privacy ofdebate closely follows the right of Parliamentto prevent the publication of debates.Attendance at Parliamentary debates and thepublication of debates are by sufferance only,although it is now recognized thatdissemination of information on debates andParliamentary proceedings is advantageous toEnglish democracy and, in fact necessary . -topublic safety. By judicial dictum it has beenstated that there is a right to publish fair
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and accurate reports of Parliamentary debates,but actually the traditional privilege ofParliament continues in conflict with judicialopinion. There is still a standing orderforbidding the publication of Parliamentarydebates, an order that by custom and the rightof sufferance has become practically obsolete;yet the threat of such an order and thepossibility of a contempt citation for itsabuse, should Parliament deem it advantageousto withhold some particular discussion, serveas check upon careless reporting and distortedcomment."
I have already mentioned the enactment of theParliamentary Papers Act 1840, which came closeupon the heels of Stockdale v. Hansard (14) inwhich the courts disputed the privilege of suchpublication. Halsbury in Laws of England, Vol. 28(4th Edn), para. 104, sets out the present legalposition as follows:
"104. Authorised reports and copies of parliament-ary proceedings-
"Without prejudice to any of the privileges ofParliament persons who publish under thedirect authority of either House of Parliamenthave the statutory protection of a summarystay of proceedings, civil or criminal, inrespect of reports, papers, votes orproceedings of either House while those who,although not acting under the direct authorityof either House publish a correct copy of suchreports,papers, votes or proceedings have asomewhat similar statutory protection."
Erskine May deals with this matter in greaterdetail as follows:
II
Privilege does not protect a publisher
SCHewamanne v. De Silva (WanasunderaJ.)41
publishing a paper presented to Parliament andprinted by order of the House (except underthe statutory certificate or proofs).- It isno defence, at common law, that defamatorystatements have been published by order of theHouse.
Stockdale v. Hansard (supra). An actionagainst the publisher of a report made toParliament by a statutory body, and orderedby the House to be printed, succeeded on theground that defamatory statements in thereport were not privileged by virtue of theHouse's order for printing. In Lord Denman'sjudgment, a distinction was drawn between what,the House may order to be printed for the ’useof its members,' and what may be publishedand sold 'indiscriminately.'
The controversy between the House and theCourt of Queen's Bench., of which this decisionforms a part, led to high words on both sidesand raised a wider question, as to therelation of courts of law to questions ofprivilege (see p. 187). But the decision inthis case prescribes the limits of ' the rightof the House to publish its proceedings ormatters connected therewith, and lays downthat, apart from statutory protection,suchpublication,if defamatory, is actionableunless it is confined to members of the House.
Statutory protection for Parliamentary publication:
By the Parliamentary Papers Act 1840, passed inconsequence of the decision of the Court of Queen'sBench in the case of Stockdale v, Hansard (supra),it was enacted that proceedings, criminal or civil,against persons for the publication of papersprinted by order of either House of Parliament,
[1983]l Sri LR.
42Sri Lanka Law Reports
shall be immediately stayed* .on the production ofa certificate(Verified by affidavits to the effectsuch publication is by order of either House ofParliament, Proceedings are also to be stayed, ifcommenced on account of the publication of a copyof a parliamentary paper, upon the verification ofthe correctness of such, copy; and in proceedingscommenced for printing any extract from, orabstract of, a parliamentary report or paper, thedefendant may give the report in evidence under thegeneral issue, and prove that his own extract orabstract was published bona fide and withoutmalice; and if such shall be the opinion of thejury, a verdict of not guilty will be entered."
The above is a paraphrase of sections 1, 2 and 3of the Parliamentary Papers Act 1840, The first twosections appear in substance as section 19 of ourown Parliamentary Powers and Privileges Act (Cap.383), but these sections do not arise forconsideration in this case. Section 3 of the U.K.Act is worded as follows
"And … it shall be ’.awful in any . civil orcriminal proceeding to be commenced orprosecuted for printing any extract from orabstract of such report, paper, votes, orproceedings, to give in evidence under thegeneral issue such report, paper, votes, orproceedings, and to show that such extract orabstract was published bona fide and withoutmalice; and if such shall be the opinion ofthe jury, a verdict of not guilty shall beentered for the defendants."
Having regard.to the intention behind thisAct, there is no doubt that sections 1 and 2 are ineffect statutory extensions of the absoluteprivilege of Parliament to the publicationsconcerned. They ordain that all court proceedingsshould be brought to a halt upon the production of
SCHewamanna v. Da Silva (WanasunderaM43
the requiredcertificatefromtherelevant
Parliamentryofficer oruponthe required
verification being produced. Section 3 is differentin kind from the two earlier sections and appearsto belong to an altogether different category. Itgives a lesser defence of qualified privilege. Thissection operates on the conduct of the trial,on itsprocedures and evidence shoving that the court willcontinue to be seized of the case. In short it isnot cast in terms of parliamentary privilege atall.Hip question whether or not this Act applies toordinary civil and criminal proceedings only, andis not capable of taking in contempt proceedings asargued by Mr. Nadesan, is one that need not be goneinto here, as our inquiry is restricted to section
Section 3 contains expressions like "evidenceunder the general issue", and "opinion of thejury". It is evident thatsuchlanguage is
singularly inappropriate in the case, of sunsnarycontemptproceedings. Inanyeventour
Parliamentary Powers and Privileges Act (Gap. 383)has deliberately omitted a provision such assection 3 of the U.K. Act. Therefore, whatever bethe immunity contained in section 3 of the U.K.Act, no such immunity can be recognised here*. Theresulting position, as far as the present case isconcerned, is that there is no privilege recognisedby our law that would protect the impugnedpublication.
The Attorney-General however relied on thepassage from Ersklne May at page 80 for thepropositions he advanced before us. If he meant tosay that the present case dealt with thepublication of a proceeding of Parliament andtherefore was automatically entitled toparliamentary privilege, I am afraid this passagedoes not support him. it is reproduced in toto toprevent any misconstruction:
44Sri Lanka Law Reports[1983] 1 Sri LR.
" . . . Consideration must now be given tothe principles upon which the publication ofreports of Parliamentary debates andproceedings is privileged against actions incourts. Although the privilege of freedom ofspeech protects what is ; said in . debate ineither House, this privilege does not protectthe publication of debate outside Parliament.Nor does an order of the House for theirprinting and publication confer parliamentaryprivilege on proceedings published outsideParliament. A Member who publishes his speechmade in either House separately from the restof the debate is responsible for any libellousmatter it may contain under the common lawrules as to defamation of character. But thepublication, whether by order of the House ornot, of a fair and accurate account of adebate in either House of Parliament isprotected by the same principles as that whichprotects fair reports of proceedings in courtsof justice, namely, that the advantage to thepublic outweighs any disadvantage toindividuals unless malice is proved. Statutoryprotection has been given,by the ParliamentaryPapers Act 1840, to papers published by orderof either House of Parliament from proceedingsin any court of law."
It would be convenient to pause here to referto a submission made by Mr. Mark Fernando, whichappears to be mistaken and a perpetuation of anerror made at one time by the English courts. Myrecollection is that the Attorney-General himselftook the same stand. At one time there was amisconception that the parliamentary privilegewhich safeguarded freedom of speech and debate,gave protection to the publication of such speechesand debates. The argument was simple, namely, thata proceeding of Parliament enjoyed a privilege
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45
whether it took place inside the House or wasreported outside the House in the form of a report.In fact, the leading case setting out this view wasLord Kenyon's judgment in R.V,Wright (17). Thiscase was strongly relied on by Mr. Fernando in thecourse of his submissions. But this view wasrecognised as being clearly erroneous. This becomesapparent from this same quotation from Erskine May,which we continue:
"The close relation between a proceeding inParliament, such as a debate, and thepublication of that proceeding seems to havemisled members of both Houses and the courtsinto thinking that the same privilegeprotected both the proceeding and. itspublication.
In his judgment in R, v. Wright ,(supra),Lord Kenyon thought it 'impossible to admitthat the proceeding of either of the Housesof Parliament could be a libel' upon which itwas afterwards observed that the most learnedjudge 'here confounds the nature of thecomposition with the occasion of publishingit' (By Lord Denman in ’ Stockdale v, Hansard ,(supra). The notion seems to have been eitherthat the privilege attaching to theproceedings themselves was transferred totheir publication or that anything whichformed part of the proceedings of Parliamentbecame permanently divested of all libellouscharacter. But Lord Kenyon himself decidedthat a speech which had been made in theHouse of Lords was not privileged, ifpublished separately from the rest of thedebate (R. v. Lord Abingdon (18) ).InStockdale v. Hansard (supra) in 1837 it hadbeen decided that publication by order of theHouse did not confer privilege on a paperwhich had been ordered to lie upon the Table
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of the House., and so might be regarded as aproceeding -of the House. It was not until 1868that it occurred to any litigant to bring anaction for libel against the publisher of adebate in pne of the Houses of Parliament,and, in this case, although the publicationwas decided .to be protected,the principle onwhich it was protected was held not to be thatof parliamentary privilege but the sameprinciple as that on which accurate reportsof proceedings- in courts of justice areprivileged, (see Wason v. Walter, (1)).
Once again I would like to interrupt thiscitation, for it would be pertinent at this stageto emphasise one. or two basic matters. It isessential that we bear these distinctions in mindif we are to understand the issues before us. Theexpression "proceedings of Parliament" bears thewidest connotation.Whatever business of Parliamentthat takes place within theChamber would
undoubtedly enjoy an absoluteprivilege.Such
privilege may be of different kinds.But when wecome to' matters done or having effect outside theChamber, a number of different factors come intoplay, e.g., in regard to the publication of thespoken debates there could be privilege,or extendedprivilege, qualified privilege or no privilege,asthe case may be. In fact, it has been said that ifa member publishes his speech made in the House,his printed statement is a separate publicationunconnected with any proceeding in Parliament. Thenthere is the Parliamentary Papers Act which dealwith a separate matter altogether, namely thepublication of documents or papers on orders of theHouse and the publication^ Parliamentary papersas in the case before us.^
Now to proceed with the quotation:
"Privilege does not protect a Memberpublishing his own speech apart from the rest of a
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47
debate: – If a Member publishes his speech, hisprinted statement becomes a separate publicationunconnected with any proceedings in Parliament.
Abingdon's case, (supra). – An informationwas filed against Lord Abingdon for a libel. He hadaccused his attorney of improper professionalconduct, in a speech delivered in the House ofLards, which he afterwards published in severalnewspapers at his own expense. Lord Abingdonpleaded his own case in the Court of King's Bench,and contended that he had a right to print what hehad, by the law of Parliament, a right to speak;but Lord Kenyon said, that 'a member of Parliamenthad certainly a right to publish his speech, butthat speech should not be made a vehicle of slanderagainst any individual; if it was, it was a libel.'The court gave judgment that his lordship should beimprisoned for three months, pay a fine of £ 100 andfind security for his .good behaviour (see Rex v.Creevey, (19); Stockdale v» Hansard , (supra); WasonVo {falter (1)
Creevey's case, (supra)-Mr Creevey, a member ofthe House of Commons, had made a charge againstan individual in the House, and incorrectreports of his speech having appeared inseveral newspapers, Mr Creevey sent a correctreport to the editor of a newspaper, with arequest that he would publish it. Upon aninformation filed against him, the jury foundthe defendant guilty of libel, and the King'sBench refused an application for a new trial(See Lord Ellenborough's judgment). Mr Creevey,who had .been fined £ 100, complained to theHouse of the proceedings of the King's Bench,but the House refused to admit that there was abreach of privilege (C.J. (1812-13), 604; Pari.Deb. (1812-13) 26 c.898).'*
'Halsbury’s Laws of England, Vol. 28, (4th Edn)para. 103 states the Law in almost the identicalmanner:
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[1983]1 Sri L.R.
"103.Proceedings in Parliament: Vords spokenby a member of Parliament in Parliament areabsolutely privileged, and the court has nojurisdiction to entertain an action in respectof them. When Parliament is sitting andstatements are made in either House, the membermaking them is not amenable to the civil orcriminal law, even if the statements are falseto his knowledge, and a conspiracy to make suchstatements would not make the members guilty ofit amenable to'the criminal law. However, thisprivilege does not extend to a statementpublished by a member outside the House, evenwhere it is a reproduction of what was said inthe House, and made in consequence of theappearance of an incorrect publication in thenewspapers; and a letter from a member to aminister, even on a matter of public concern,is probably not entitled to absoluteprivilege."
With this background in mind I shall now turnto Wason v. Walter , (1), on which theAttorney-General placed almost the entire weight ofhis case. In this case the plaintiff presented apetition to the House of Lords charging a highjudicial officer, with having 30 years before madea false statement in order to deceive a Committeeof the House of Commons and praying for an inquiryand removal of this officer. There was a debate onthis matter and in the course of the debate it wasfound that the allegations made by the plaintiffwere utterly unfounded.
The Times newspaper published a faithfulreport of this debate.As a sequel,the plaintiffbrought an action for libel against the owner ofthe newspaper. It would be observed that this was acouoon law action for libel and was not a case ofcontempt of court. In any event the facts allegedcoold not have constituted a contempt of court for
SC Hewamannay. De Silva (WanasunderaJ.) 49
a libel on a judge in his personal rapacityconstitutes a libel and not a contempt. The courtin holding the publisher not liable for libel heldthat the publication should be regarded asprivileged on the same principle as an accuratereport of proceedings in a court of justice isprivileged( namely that the advantage of thepublicity to the community at large outweighs anyprivate injury resulting from the publication.
The following two quotations. from thejudgment (the first cited in all standard textsrelating to libel and slander as a correctstatement of the law) demonstrate the reasoningbehind the decision
" To us it seems clear that the principles onwhich the publication of' reports .of the'proceedings of courts’of justice have been heldto be privileged, apply to the reports ofparliamentary proceedings. The analogy betweenthe two cases is in every respect complete. Ifthe rule has never been applied to the reportsof parliamentary proceedings till now, we mustassume that it is only because the occasion hasnever before arisen. If the principles whichare the foundation of the privilege in the onecase are applicable to the other, we must nothesitate to apply them,more especially when byso doing we avoid the glaring anomaly andinjustice to which we have before adverted."
The court also set out the basis on whichpublication of judicial proceedings are accordedimmunity, namely pfedominence being given to the.public. interest as against a limited privateinterest:
"it is now well established that faithful andfair reports of the proceedings of courts ofjustice, thpugh the character of individuals
so
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may. incidentally suffer,are privileged, andthat for the publication of such reports thepublishers are neither criminally nor civillyresponsible."
The immunity thus afforded in respect of thepublication of the proceedings of courts ofjustice rests upon a twofold ground. In theEnglish lav of libel, malice is said to be thegist of an action for defamation. And though itis true that by malice, as necessary to give acause of action in respect of a defamatorystatement, legal and not actual malice, ismeant, while by legal malice, as explained byBayley, J.,in Broisage v. Prosser (20),is meantno more than wrongful intention which the lavalways presumes as accompanying a wrongful actwithout any proof of malice in fact, yet thepresumption of law may be rebutted by thecircumstances under which the defamatory matterhas been uttered or published, and, if thisshould be the case, though the character of theparty concerned may have suffered, no right: ofaction will arise.'The rule,' said LordCampbell, C.J., in the case of Taylor-v*Hawkins (21),'is that if the occasion be suchas repels that presumption of malicg, thecommunication is privileged, and the plaintiffmust then, if he can, give evidence of malice.'
It is thus that in the case of reports -ofproceedings of courts of justice,thoughindividuals may occasionally suffer from them,yet, as they are published without anyreference to the individuals concerned butsolely to afford information to the public andfor the benefit of society, the presumption ofmalice is rebutted, end such publications, areheld to be privileged.
The other and the broader principle on whichthis exception to f**r general law of libel is
SC •
51
■ Hewamanne v. Da Silva (Wanasundera,J.)
founded is, that the advantage to the communityfrom publicity being given to the proceedingsof courts of justice is so great,that theoccasional inconvenience to individuals arisingfrom it must yield to the general good. It istrue that' with a view to distinguish thepublication of proceedings in parliament fromthat of proceedings of courts of justice,it hasbeen said that the immunity accorded to thereports of the proceedings of courts of justiceis grounded on the fact of the courts beingopen to the public, while the houses ofparliament are not; as also that by thepublication of the proceedings of the courtsthe people obtain a knowledge of the law bywhich their dealings and conduct are to beregulated. But in our opinion the true groundis that given by Lawrence,J,in Rex v. Wright(supra) namely, that 'though the publication ofsuch proceedings may be to the disadvantage ofthe particular individual concerned, yet if isof vast importance to the public that theproceedings of courts of justice should beuniversally known. The general advantage to thecountry in having these proceedings madepublic, more than counterbalances theinconvenience to the private persons whoseconduct may be the subject of suchproceedings. ' In Davidson v. Duncan (22),Lord Campbell .says, 'A fair account of whattakes place in a court of justice isprivileged. The reason is, that the balance ofpublic benefit from publicity is great. It isof great consequence that the public shouldknow what takes place in court; andthe
proceedings are under the control ofthe
judges.The inconvenience therefore, arisingfrom the chance of injury to private characteris infinitesimally small as compared to the'convenience of publicity.1 And Nightman,J,says:- 'The only foundation for the exception
52Sri Lanka Law Reports[1963] 1 Sri LR.
is the superior benefit of the publicity of.judicial proceedings which counterbalances theinjury to the individuals, though that at tiaesmay be great.'
Both the principles on which the exception fromlegal consequences is thus extended to thepublication of the proceedings of courts ofjustice, appear to us to be applicable in thecase before us.The presumption of malice isnegatived in the one case as in the other bythe fact that the publication has in view theinstruction and advantage of the public, andhas no particular reference to the partyconcerned. There is also in the one case as inthe other a preponderance of general good overpartial and occasional evil.We entirely concurwith Lawrence, J., in Rex v. Wright (supra),that the same reasons which apply to thereports of the proceedings in courts of justiceapply also to proceedings in parliament»"
And again at page 94:
"It is to be observed that the analogy betweenthe ease of reports of proceedings of courts ofjustice and those of proceedings in parliamentbeing complete,all the limitations placed onthe one to prevent injustice to individualswill necessarily attach on the other: a garbledor partial report,or of detached parts ofproceedings, published with intent to injureindividuals, will equally be disentitled toprotection. Our judgment will in no wayinterferewith the decisions thatthe
publication of a single speech for the purposeor with the effect of injuring V an individualwill be unlawful, as was held in the cases ofRex v. Lord Abingdon (supra),and Rex v. Creevey(supra),as to such a speech being privileged ifbona fide published by a member forthe
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53
information of his constituents.But whateverwould deprive a report of the proceedings in acourt of justice of immunity will equally applyto a report of proceedings in parliament."
These passages, speak for themselves.Theymerely set out the principles guiding a court indeciding a libel, action between private partiesinvolving the reporting or the publication of aparliamentary debate. At no point has the courtthought it necessary to embark on- an inquiry as tothe existence or the extent or the applicability ofthe privileges of Parliament or of the powers ofthe courts in respect of contempt. My understandingof this matter is borne out fully by the judgmentof Chief Justice S .R. Das of the Indian SupremeCourt in Mc S„ M. Sharma v. Sri Krishna Sinha(supra), where he himself came to the sameconclusion. The facts of this case are somewhatcomplex. It was a case dealing with the privilegesof the Bihar Legislative Assembly. At the annualbudget debate a member of the Assembly made " oneof the bitterest attacks against the way the ChiefM.irs3.sr.6T was condMrtxng the adfiixnxsf^’atxcn of the
State".The petitioner who was the editor of a paperpublished this speech, A member of the Assemblyraised the question of a breach of privilege of theHouse and the matter was referred to the Committeeof Privileges. After some delay, the petitioner wasserved with a notice from the House asking him . toshow cause why he should not be punished for abreach of privilege. As submitted to us by theAttorney-General, the learned advocate for thepetitioner relied on Wason v. Walter (1) andcontended:
" that this decision establishes that the
Press had the absolute privilege of publishinga report of the proceedings that take place inParliament, just as it is entitled to publish a
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'faithful and correct report of the proceedingsof the Courts of justice, though the characterof individuals may incidentally suffer and thatthe publication of such accurate reports is.privileged and entails neither criminal norcivil responsibility.This argument overlooksthat the question raised and actually ■decidedin that case, as formulated by Cockburn C„J.himself at p.82, was simply this:-
'The main question for our decision is, whethera faithful report in a public newspaper of adebate in. either House of Parliament,containing matter disparaging to the characterof an individual,as having been spoken in thecourse of the debate, is actionable at the suitof the party whose character has thus beencalled in question.'
The issue was between the publisher and theperson whose character had been attacked. Thequestion of the privilege, as between the Houseand the newspaper, was not in issue at all. Inthe next place, the observations relied .upon asbearing on the question of privilege ofParliament were not at ail necessary fordeciding that case, and as Frank Thayer pointsout at p.32 of his Legal Control of the Press,
'this part of the opinion is purely dictum'•
So much for the decision in Wason v. Walter.(1). Cook v. Alexander, (23), was another authorityrelied on by the respondent. It is a case similarin principle to Wason v. Walter (1). It relates tothe reporting of words spoken in the debate ofParliament. It too dees not deal with a publicationof parliamentary papers. In fact, Lord Denningbegins his judgment as follows:- -J*
"This case raises a point of considerableimportance. It is about the reporting of
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55
proceedings in Parliament. It has not come upfor full discussion in the courts for over 100years; that is since Mason v. Walter (1)."
The facts of this case are as follows: Theplaintiff vas a teacher at an approved school andhad publicly criticised the school for itsexcessive- severity in the punishment of thestudents. Consequent to this criticism theGovernment held an inquiry and the Home Secretarymade an order closing the school. This matter cameup for discussion in the House of Lords in whichthe closure order was criticised by the oppositionand defended by the Government. Eleven speakersspoke in the debate, lasting over three hours, andthe record filled 94 columns of Hansard. One of themain contributions was a speech made by a bishopwho condemned the plaintiff in strong terms. AGovernment spokesman rebutted that criticismcalling it "a monument of unfairness”
On the next day the "Daily Telegraph"reported the debate fully in three columns in ,aninside page' of the newspaper. The report gaveextracts of all the speeches and was a fair andaccurate summary of the debate. There was also onthe back page an item in the form of "Parliamentarysketch", i.e. an impression of the debate as thereporter saw and heard it.It was a selective reporthighlighting certain portions of the debate whichthe reporter thought would be of special publicinterest. The sketch gave prominence to thebishop’s speech and had an arresting headline – andstated that the bishop had made a scathing attackon the plaintiff.There was a passing reference tothe rebuttal. This sketch also gave two pagereferences to the inside page which contained thefull debate.
The Court of Appeal, following Wason v.Walter (1) held that the qualified privilege
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enjoyed by a report of proceedings in Parliament inthe form of a precis of the words spoken could beextended to a sketch of Parliamentary proceedingsif the sketch was made fairly and honestly with theIntention of giving an impression of the impact ofthe proceedings made on the hearer. The importanceof this judgment lies on the fact that this’ was thefirst time a Parliamentary "sketch" came up forconsideration. Lord Denning said:
"The Parliamentary sketch is thus a differentthing from a report of proceedings in Parlia-ment. A report of proceedings in Parliament,asusually understood,is a report of the wordsspoken in the debate, summarised so as to fit-into the space available. In. short a precis.Such a report was considered in 1868 in WasonV. Walter* (1)"
Lawton, said:
"The. reporter represents the public inParliament: he is.their eyes and ears: and hehas to do his best, using his professionalskill to give them a fair and. accurate pictureof what went on- in either the House of Lords orthe House of Commons. He cannot reporteverything that happened; he must from the verynature of things he selective and what he may.well find himself alone in answering . is the'question: .Welly . if I were a fair minded,reasonable member of the public, what would Ihave remembered about, this debate? He is in myjudgment entitled to set out what heremembers."
It would be thus seen that these authoritiescan be distinguished from the instant case in twoimportant particulars. First, these are cases oflibel and not relating to contempt of court and.
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57
second, they deal with the publication of thespoken words in a debate and not with a publicationof what is contained in a parliamentary paper ordocument as in this case. In the context of thismatter, I deem it of utmost importance that thesedistinctions should be borne in mind.
If Wason v. Walter (1) and this case have anybearing on the issue before us, it is to show thatthe protection that was recognised by them topublication of .parliamentary proceedings wasgranted not by virtue of the law of parliamentaryprivilege or the statutory extension of theprivilege,; but by. principle of the common law,where the judges by analogy -extended to thereport of parliamentary proceedings, a likeprotection as obtaining in respect of thepublication of judicial proceedings. Apart fromthat, I have got little assistance from them sincethey have no real bearing on the actual issuebefore us. ' –
The foregoing discussion would show thatneither the absolute privilege of Parliament nor.the extended statutory privilege • can haveapplication to this case; nor does Wason v. Walter(1) relied on by the Attorney-General carry hiscase any further. Fortunately for us, there is anIndian decision very much in point – which therespondents tried to brush aside – and other dictaand the opinion of text writers which provide theclearest guidelines for resolving this matterwithout resorting to the libel cases which wereextensively relied on by the respondents.
The libel cases are therefore, in my view,irrelevant and this case could very well be decidedwithout reference to them.However,in deference tothe arguments of counsel and having regard to thetime taken on the analysis of those cases, I think1 owe it to counsel to say something about those
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arguments and cases for whatever they are worth.
First, let me deal with the cases that are inpoint. There is this Indian case Mohanty v,Nabakrishna Choudhoury, (24). This case lays downwithout any hesitation that a fair and accuratepublication by a newspaper of a parliamentarydebate enjoys no protection if it constitutes acontempt of court. In this case the Chief Ministerof Orissa made a statement during proceedings inthe Legislature, where he referred to the"immaturity of the High Court" and added that inmany instances the Supreme Court had corrected theHigh Court and also held that the High Court had-abused its powers. This debate was published by the2nd respondent, the editor of the newspaper"Matrubhumi". Both respondents were noticed by theHigh Court on a charge of contempt.
The main argument was as to whether the ChiefMinister was answerable for the speech made in theLegislature. The High Court proceeded on the basisthat the contents of the speech amounted, primafacie, to contempt and the issue was whether it wasprotected by Article 194(2) of the Constitutionwhich provided for privilege of the freedom ofspeech in the House. It was argued that Articles194(1) and (2) were subject to the other provisionsof the Constitution, in which case an absolutefreedom of speech in the Legislature could not havebeen claimed. The court however held that there wasa difference in the wording of Articles 194 (1) and(2) and the Chief Minister was entitled to claimimmunity under Article 194(2). The 2nd respondenthowever was held to have committed contempt ofcourt by publishing that debate. He tendered anunconditional apology.
Ihis case which covers the present situationsquarely shows that the publication of a speechmade in Parliament – even though immunity attaches
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59
to the speech – can amount to contempt of court, ifit contains objectionable material. In answer, therespondents could only say that, since the accusedhad pleaded guilty, the case had been decidedwithout a discussion of the issue before us. Thisappears to be a feeble rejoinder. The main partof the case dealing with the privilege of theLegislature had been hotly contested and it seemsto me that neither the judge nor the respondent hadany doubts or misgivings about the 2nd respondent’sculpability,
Next I turn to an English authority /?.v. Border Television Ltd. (25). In this case therespondents, a television company and a provincialnewspaper, were separately charged with concempt ofcourt for publishing information about a criminaltrial during its progress, which information wascapable of revealing to the jury that the accusedhad committed other offences. Out of 20 counts theaccused had pleaded to four charges on the firstday of trial and the trial was continuing on theother charges. The report of the proceedingscontained this fact. The Attorney-General moved inthe matter and brought this publication to thenotice of court as an instance of contempt.
It was argued that a fair, accurate andcontemporaneous report of judicial proceedings isprivileged and that in the conflict between thepublic interest in free reporting of • judicialproceedings with the private right of the accused,the public interest outweighs the private interest.The Lord Chief Justice said:
"If it were true that the conflict arising inthis case is a conflict between public. interest and private interest,then there isample authority to justify what Mr.Gray hadsaid. Those authorities are very numerous andexceedingly well known. But what .is said
60Sri Lanka Lew Reports[1983] 1 Sri LR.
against Mr. Gray's contention is that this isnot a conflict between two interests, one ofwhich is public and the other of which isprivate. In truth this is a conflict in so faras it is a conflict at all, between two publicinterests and therefore has to be approachedas Lord Reid approached a similar problemin what is generally nowadays called theThalidomide case(54) "
The Lord Chief Justice concluded:
"It seems to me they are both public interestsand they can both perfectly well be allowed tolive together by simply recognising that anyaction which would be contempt of court isnot protected by the fair, accurate andcontemporaneous exemption. By that approachthe two public interests can be fully served."
The question of contempt of court inrelation to the publication of judicial proceedingsand also in relation to the privileges ofParliament arose in the famous Colonel "Bn episode.The facts are these:Several journalists were
charged under the Official Secrets Acts 1911 and1920. During the committal proceedings, an officerof the Security Services was allowed by theMagistrate to give his evidence anonymously asColonel "B". Despite this court ruling, threenewpapers disclosed the Colonel's name gatheredfrom material produced in court. Proceedings forcontempt of court were initiated by the Attorney-General against those newspapers. Before hearingstook place,the matter however was the subject ofdiscussion in Parliament. Pour members ofParliament referred to Colonel "B" by his correctname in the course of questions on the business ofthe House. Neither the Speaker nor any member wasthen aware that the matter was subjudice andtherefore no action was taken at that time. The
' sc
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61
Speaker, however, later in a statement to the Houseadmitted that the actions of the members werecontrary to the subjudice rule. This was also theopinion of the Committee of Privileges which laterinquired into this matter.
Some journalists then realised the importanceof the members.' actions in naming Colonel "B". Theywrote to the Director of Public Prosecutions andasked for guidance with regard to the reporting ofthe day's parliamentary proceedings.They wanted toknow whether this would constitute a contempt ofcourt. The Director of Public Prosecutions, issuedthe following statement:
"The legality of revealing the identity ofColonel "B" is the subject matter of pendingproceedings for contempt of court.lt is notaccepted, despite the naming of the Colonel onthe floor of the House of Commons, that thepublication of his name would not be acontempt of court even if it was a part of areport of proceedings in the House" (Vide H.C, Debates, Vol. 948 col. 812).
Since this statement dealt with apublication of Parliamentary proceedings somemembers of the House thought that the Director ofPublic Prosecutions has sought to interfere- with amatter concerning Parliament.Accordingly,a memberraised a question of Privilege in Parliament. Aftervarious motions were tabled on this matter, theLeader of the House on May 2,'1978, moved "that thematter of publication of the Proceedings of theHouse, other than by order of the House, in so faras the Privileges of the House are concerned, andthe matter of the application – of the subjudice
ruleshould be referred to a Committee of
Privileges." This was agreed upon and the Committeeof Privileges made an initial report. It held that
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the statement of the Director of- PublicProsecutions did not violate the privileges ofParliament.
The contempt proceedings initiated bythe Attorney-General in the Colonel "B" matteragainst the newspapers and journals ended in aconviction.An appeal was however taken to the Houseof Lords.Vide Attorney-General v. Leveller Magazine(26).The House of Lords allowed the appeal becausethe circumstances showed that whatever ruling thecourt had given to conceal the identity of Colonel"B" had later beenimpliedlyabandonedand
therefore the publication of his identity would notamount to an interference with the administrationof justice.
Lord Diplock in an illuminating judgment setout the basic principles that should apply to acase such as that.His judgment includes all typesof contempt and the words "comment or informationthat has a tendency to pervert the course of
justiceby deterring other people from having
recourse to courts of justice in the future for thevindication of their lawful rights", are meant toinclude the contempt of Scandalising the court byimputing dishonesty or partiality to a court.What'this decision clearly holds is that a fair andimpartial report of a proceeding of court does notnecessarily give complete immunity but is subjectto the principles of contempt of court.That is theprinciple contended for by Mr. Nadesan and deniedby the respondents. The following excerpts from thejudgment bear out' this position
Lord Edmund-Davies stated the law as followsat page 362:
"The phrase 'contempt of court'
does not in the least describe the true natureof the class of offence with which we are here
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concernedThe offence consists in
interfering with the administration of thelaw; in impeding and perverting the course of
justiceIt is not the dignity of the
court which is offended – a petty andmisleading view of the issues involved – it isthe fundamantal supremacy of the law which ischallenged (Johnson v. Grant, (27), per LordPresident Clyde,at p.790),When contempt isalleged the Courts have for generations foundthemselves called upon to tread a judicialtightrope, for, as Phillimore J. put it inBlumenfeld (28) at p. 311: 'The court had toreconcile two things namely, the right of freespeech and the public advantage that a knaveshould be exposed, and the right of anindividual suitor to have his case fairlytried. The only way in which the court couldsave both was to refuse an unlimited extensionof either right-It became, then, a question ofdegree,' This dilemma most frequently arisesin relation to Press and other reports ofcourt proceedings, for the public interestinherent in their being fairly and accuratelyreported is of great constitutional importanceand should never lead to punitive actionunless, despite their factual accuracy, theynevertheless threaten or prejudice the dueadministration of justice.”
Lord Scarman said in his succinct manner at page
370:
”My Lords, when an application is madeto commit for contempt of court a journalistor editor for the publication of information ‘relating to the proceedings of a court,freedom of speech and the public nature ofjustice are at once put at risk. The generalrule of our law is clear. No one shall bepunished for publishing such information
64■Sri Lanka Law Reports[1983j.1 '3r: L.R.
unless it can be established to the:satisfaction of the Court to. whom theapplication is made thatthepublication
constitutes an interference with theadministration of justice either in theparticular case to .whichthepublication
relates or generally"
1 now come to consider the. views of textwriters. Gatley, on Libel and Slander at page 317,states:
"735.. The administration of justice:- 'The dueadministration of justice; is, undoubtedly a- matter of public interest, and therefore fairmatter for public comment. Not only theproceedings at the trial, but also the conductand decision of the judge, and the verdict ofthe jury, are matters of public interest andmay be lawfully commented on as soon as thetrial is over."
As a footnote to the above (footnote 78) heobserves:
"It is of the utmost importance todistinguish three separate questions. Thefirst is: what comments on the administrationof justice are fair comments on a matter ofpublic interest, so as to fall within thedefence of fair comment in a defamation ac-tion? The second is: what reports or commentsmay be made on the administration of justicewithout committing a contempt of court? Thethird, which is dealt with in secs. 592 etseq.is: what proceedings are such that fairand accurate reports of them are privileged ?
While the questions are separate, it may
SC Hewamanne v.. De Silva {Wanasundera,J.) 65 ■
'be_ Hof- ,.impottanG.e :-to. consider .. whether ■ a.,publication is a contempt in'deciding whether,it is privileged or a fair comment. Thereappears to be no direct authority as towhether a publication which is a contempt ofcourt can be a fair comment on a matter ofpublic interest. In a case in which thepublication complained of is a contempt,because of the possible prejudice to theperson defamed it is difficult to see how thecomment can be fair in relation to him thoughit might be in relation to another. HoweverWoodgate v. Ridout, (29) .where Cockburn., C.J.,seems to have suggested that a publicationmight be a fair comment even if the writer wastaking on himself to dictate what the judgmentof the court should be, which is at leastclose to contempt. Where a comment is onproceedings, which it would be a contempt ofcourt or contrary to a statutory prohibitionto report it, it is submitted that suchproceedings are not a matter of publicinterest for this purpose, though the decisionof a court to restrict publication must be amatter on which it is legitimate to comment.See Sec.596 n.28 for contempt and privilege."
These observations had been made before thedecision in R, v. Border Television Ltd, (supra)This decision now substantiates those observations.
The law of libel itself .contains certainlimitations in the exercise of this privilege.These are most significant and are set out inGatley at page 253:
"596. Limits of privilege:- It is obviousthat, as the (common law) privilege Is foundedupon grounds of public policy, and of benefitand advantage to the community, it does notextend to protecting any report, however . fair
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and accurate, which is blasphemous, seditiousor immoral,or prohibited by statute or by anyrule or order having statutory force,or byorder of the court or a judge prohibiting areport of the proceedings in any caise wherethe publication of such report would interferewith the course of justice. ”
Footnote 28 to this passage contains the
following
11 .See also ' Bognuda v. Bawkes Bay
Newspapers,(30), where the defendants provedthat an order restricting publication of thematter complained of was. made withoutjurisdiction, so that the publication wasprivileged. It is submitted that there can beno privilege for a report, the publication ofwhich is a contempt of court: see sec. 735, n.78. This was conceded in Luces & Son v. O'Brien, (31), though an exception was said tobe possible."
Halsbury's Laws of England, Vol.28, (4th Edn)Para.119, page 61, virtually echoes the statementscontained in Gatley referred to above. Halsburystates:
"119.Reports of judicial, parliamentary andother proceedings. The publication of a fairand accurate report of judicial proceedingstaking place before a properly constitutedjudicial tribunal sitting in open court isprivileged, and no action lies at common lawin respect of the publication in the reportunless malice is established. This common lawprivilege is not confined to judicial reportsbut extends to reports of proceedings inParliament and of other public proceedingswhere the publication is for the common
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convenience and welfare of society,that is inthe public interest. The privilege is notconfined to reports published in a newspaperor to reports published contemporaneously;every person has the protection of theprivilege if he publishes the report merely toinform the public.
Being directed to the public interest,the common law privilege will not protect anyreport that is blasphemous, seditious orobscene,or which is prohibited by statute orby the order of a court or of a judge. Sincethe ground of the common law privilege is thatthe public is entitled to be present at theproceedings and therefore to be informed ofwhat took place, the privilege does not extendto reports of proceedings at which the publicis not entitled to be present, such asproceedings at common law in certain domestictribunals or arbitrations. The publication ofreports of pleadings or evidence whileproceedings are pending may constitute acontempt of court,as also willthe
publication of a report of proceedings beforeany court sitting in private concerned withthe exercise of its jurisdiction over infant^.,or mentally disordered persons,or where theinformation . reported relates to a secretprocess,discovery or invitation in issue inthe proceedings.
Note 9:-Publication when prohibited by courtorder.constitutes a contempt of court:R. v.
Clement (32). Where such an order is made by acourt in relation to proceedings held inprivate, breach of the order will be acontempt of court: see the Administration ofJustice Act 1960, s. 12(1)(c).See also
G. v. Leveller Magazine (supra).
There are two other references which are
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valuable. The first is an article by Patricia M.Leopold, entitled "Freedom of Speech in Parliamenton 1981 Public Law".At page 45, after referring toWason v. Walter ,(supra) she says:
"This means garbled or partial reports willnot be entitled to claim qualified privilegenor will those which are blasphemous,seditious, amounting to a contempt of court orare otherwise prohibited- be law."
In footnote 69 appearing on the same page relatingto the item of contempt of court, she says:
"See R. v. Border Television ex p Att-Gen„(supra),where the Divisional Court held that afair and accurate report of a court proceedingcould still amount to a contempt of court."
The other reference is to the famous Colonel "B"affair.
If we are to have regard to thoselimitations, then it seems to me that not only hasthe unfettered right claimed by the respondents topublish judicial proceedings and particularlyParliamentary proceedings not been substantiated,but even on the analogy of slander and defamationcases such an immunity cannot be conceded. But onthe Other hand, both principle and authority seemto indicate that the offence of contempt of courtcan be committed in respect of the publication ofjudicial or parliamentary proceedings.
These citations, it would be seen, aresupported by case law set out in the footnote.Mr .Mark Fernando sought to distinguish some of thecases. No doubt some of them are based on statutoryprovisions, yet others clearly lay down thatqualified privilege would not be granted in cases
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where the publication is of any matter which thelaw has prohibited; or if the publication of theproceedings would be incompatible with or wouldfrustrate those very proceedings. This must surelyinclude the case of contempt of court. In the lightof what I have been saying, I do not think Mr.Fernando has succeeded in showing that thosedecisions and the views of text writers are in anyway unsound or invalid.
Mr. Nadesan has been able to secure for us acopy of the judgment in the Net; Zealand case, Lucas
& Son (Nelson Mail) Ltd. v. O'Brien, (supra),mentioned in the footnote No.28 at Gately,pages253-254, after the arguments were concluded. Thiscase appears to support the observation made by thelearned author, that a publication amounting tocontempt is not entitled to immunity.
In this case, O'Brien, a member of theSocial Credit Political League, resigned and becamethe leader of the New Democrat Party. The Leaguecommenced an action against O'Brien for misuse ofits assets. The Nelson Mail published an articlewhich was in substance the repetition of thestatement of claim filed in the Supreme CourtRegistry. O'Brien sued the Nelson Mail fordefamation. The League was also joined as adefendant on the ground that it was the Leaguewhich had furnished the copy of the statement ofclaim to the newspaper for publication.Thedefendants pleaded qualified privilege on fourgrounds, which included the following :-
(a) There was a social and moral duty tocommunicate or publish the subject-matter tothe general public by reason of thecorresponding interest in the public toreceive it.
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(b) That the publication was a fair andaccurate report of the proceedings and of therecord o.f court.
Under the procedures obtaining inNew Zealand, the court had an inherent jurisdi-ction to strike out. pleadings which were frivo-lous or vexatious. On the application of O'Brienthe Supreme Court struck out all four – pleasof qualified privilege that ■ the defendants hadraised.The defendants appealed to the Court ofAppeal. The Court of Appeal allowed the appeal ononly one ground, namely, that the defendants shouldnot be deprived of having issue (a) above decidedat the trial. The court dismissed the other groundsof appeal. The Supreme Court had erroneouslythought the considerations of public interest couldnot justify the grant of qualified privilege unlessthe publication of the contents of the statementalso attracted privilege as a fair and accuratereport of a judical proceeding. The Court of Appealtook the view that there was no such relationshipbetween the two and that the two defences wereentitled to stand independently of each other.
Although this was said, the Court givesan indication that if the statements publishedamount to a contempt of court, then differentconsideration would apply. The relevant passage inthe'judgment is as follows:-
"Another matter referred to by Ongley, J., wasthe possibility that the publication of thecontents of the statement of claim amounted toa contempt of court. The judge referred to thecase of Re Evening Star (33). In that caseWilliams, J., held that the publication of thecontents of a statement of claim amounted to acontempt of court in the particular
..SC.Hewamanna v. Da Silva (WanasunderaJ.)71
circumstances there disclosed. After citing a.passage from the judgment in that case,Ongley, J., observe, –
'It would be surprising if statementsthat might amount to contempt for the reasonsoutlined by William, J* could at the same timebe privileged for reasons of public policy inan action of defamation.'
However the judge did not go so far as tohold that the publication of the statement of claimin the present case actually amounted to a contemptof court.In argument before us Hr. Eichelbaumconceded that if it did then its publication couldnot be the subject of qualified privilege on thebasis of a moral or social duty as claimed. It ispossible that a situation could arise in which itwould be necessary for the court to^ 'balance theordinary interests of a litigant to a fair' trialagainst some other consideration of general public -interest and to decide where the overall publicinterest lay. However in view of the concessionmade by Mr. Eichelbaum there is no need to discussthat question any further. I do not understand
Williams, J, to have decided' inthe Evening Star
Case■ that the publication of a statement of claimmust necessarily amount to a contempt of court."
Although the facts of this ease deal more withprocedural matters, the brief.discussion of a pleaof qualified privilege in relation to contempt ofcourt, though inconclusivebecause ofthe
concession, helps to throw some light on theproblem. There is much to be said for the reasoningof the New Zealand Supreme Court on this issue.Totake an example,if a court expressly prohibits thepublication of certain proceedings of court, apublication in violation of this order would amountto a contempt of court. If the publication alsocontains defamatory matterconcerningsome
individual, that would prima facie give rise to a
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claim for damages. In a libel action brought by thedefamed person, would it be reasonable to permit, adefence of public interest to the publisher who hasbroken the law? Would it be in the public interestto shield a person who has defied a court order?Surely the answers must be "No". Would it not be inthe wider interest of the community to ensure theproper functioning of the courts rather thancondone an illegality? How could the publication ofmatter reflecting adversely on the administrationof justice and amounting to a contempt of court besaid to be in the public interest and be entitledto the benefit of the defence of privilege ? Boththe courts and text writers have approached thematter on these lines.
Gatley has stated that a person would bedisentitled to such protection when the report is agarbled one or is partial or of detached parts ofproceedings. This is another aspect of the matter.It has been submitted that in the present case whatwas given publicity was a mere motion which was tobe moved in Parliament for the setting up of aSelect Committee which would at some future dateinquire into some allegations.
In De Buse v* McCarthy ,(34), thedefendant, a clerk, set out a notice convening ameeting of the defendant borough council toconsider inter alia,the report of a committee ofthe council regarding a loss of petrol from acouncil's depot. A long agenda of business wasattached to the notice and copy of the report ofthe committee. The notice was not only affixed tothe door of the town hall,but as directed by thecouncil and in accordance with establishedpractice, copies were also sent to each of thepublic libraries in the borough. Four employees whoclaimed that the report was defamatory brought theaction.The defendant pleaded that the notices weresent to the libraries under the implied power givenby a statute and in discharge of the duty imposed
SCHewamanne v. Da Silva (Wanasundera,J.)73
on them. Alternatively they- pleaded that they andthe rate payers had a common interest in thesubject-matter and it was the duty of the counciland it was reasonably necessary and proper for itin the course of its business to publish the wordsto the rate payers. Lord Greene, M.R., said:
"I cannot see that it can possibly be saidthat the council was under any duty to makethat communication to the rate payers. At thatstage the matter was, in a sense, subjudice,because the committee's report by itself couldhave no practical value unless and until ithas been considered by the council and thecouncil had come to some decision on it. Thatdecision might have been that the report beadopted, or that the report be not adopted orthat the report be referred back to thecommittee .The appointment of committees ofthis kind is part of the- internal managementand administration of abody ofthis
description and, whatever the duty or the. interest of the council might have been afterit had dealt with the report and come to somedecision on it, I cannot see that at thatstage in the operation of the machinery of theborough's administration that there was anyduty whatsoever to tell the rate payers howthe wheels were going round. There may wellhave been a duty or if not a duty at any ratean interest of the council to inform the ratepayers of the resultofits own
deliberations."
Du Parq, L.J., distinguished Rex v.Rich (35) where the defendant, honestly believingin his statement,made a complaint to his member ofParliament with the object of acquainting the HomeSecretary. Lord Du Parq said:
"To find an analogy to the present case one
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. 74
-i—
would have to assume, if such an assumptionmight be made without any reflectionon
members of Parliament, that a memberof
Parliament who received such information froma^constituent were to say:'It is to my
interest to show how vigilant I am in all that^concerns my constituency' and to further thatinterest were to read out to a meeting ofelectors the highly defamatory statementswhich had been handed to him for transmissionto the Secretary of State. 1 cannot imagineany court holding in such a case that. alegitimate interest was being furthered or•■protected by the member of Parliament."
These cases to some extent support Mr. Nadesan'ssubmission in regard to the – averments in therespondents' affidavit.
Before I proceed to the last point, thereare a few miscellaneous matters to be disposed of.The first is a caution and the need to rememberthat the law of libel in the U.K. is to some extentgoverned by Statute law. These statutory, provisionsare the Libel Amendment Act 1888 and the DefamationAct 1952. These provisions must undoubtedly affectthe thinking of the courts even in the case of alibel arising from a publication of a parliamentarydebate or report. The libel cases therefore have tobe read with that reservation.
The next matter relates to the submissionmade by Mr. Nadesan to the effect that the basicprinciple -behind the libel case decisions is notapplicable in the case of contempt of court.In Webbv. Times Publishing Co* (36), which was a libelcase, Pearson, J., had given five reasons forrecognising the public interest involved in thepublication. They are:
The fact that court proceedings are open to thepublic.
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75
The administration of justice is ,.-a _ matter of
public concern." ‘"v-:
The necessity for the education of the publicon such matters.
The desirability of having fair and accuratereports rather than go by rumours.
"Most important, there is called the balancingoperation,balancing the advantages to the public ofthe reporting of judicial proceedings against thedetriment to individuals of being incidentallydefamed."
Mr. Nadesan contended that at least one ofthose items, namely (5) above, would not hold goodif we were to consider the publication ofproceedings of a court of justice amounting tocontempt of court or to any prohibited matterswhich deal not with private rights but with thelarger public interest.
The texts are very clear that the privilegewill not extend, however fair and accurate.,to. thematters which are blasphemous, seditious, immoral,etc. These are essentially public matters and thepublication of such matters, far from being for thepublic interest, would be against the publicwelfare. 1 think the distinction made by Mr.Nadesan is a valid one and the reasoning in thelibel cases which deal with harm to an individualcannot hold good when we are confronted with therase of a larger public interest as in a matter ofcontempt. The principles set out in -the cases citedby the respondents therefore do not in themselvessolve or throw any real light On the presentproblem.
There is also one other matter. We weregiven the benefit of Mr.Mark Fernando's researcheswhen he referred us to an interesting monograph in24 L.Q.R.184 – The History of Contempt of Court bySir John Fox – and sought to argue that because of
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a common origin, these two topics should be treatedidentically.by the court.lt does not appear to methat this scholarly article proves that libel andcontempt of court are identical, although there maybe some similarity between criminal libel andcontempt, since they are both of a criminal natureand originated from the incipient criminal law.What the article does show is how the courts beganto assume a power to proceed in a summary mode byway of attachment for contempt committed out ofcourt, which they did not originally possess. Thefoundation of this jurisdiction is Wilmot, J'sjudgment in .Almon's case (37), whatever be thehistorical origins.
Borrie and Lowe – The Law of Contempt , 255 -dealing with Fox’s article, makes the following
comment:
"In reaching the conclusion that the sum-mary process was applicable in cases of con-structive contempt, Wilmot, J. relied notupon specific authority but upon the gene-ral point that the jurisdiction to proceedsummarily ’stands upon the very samefoundation and basis as trial by jury do -immemorial usage and practice.' Although thishistorical assessment has never beenchallenged in subsequent English decisions, afine piece of scholarly research by Sir JohnFox has seriously challenged the historicalvalidity of Wilmot, J's opinion and it nowseems to be accepted that Wilmot,J. was wrongin saying that constructive contempts hadalways been tried summarily. However in viewof the fact the practice, which has beenrepeatedly followed over the last 200 years isnow too firmly established to be overruledjudicially, masterly though Sir John Fox's-^search may have been, it can now only be a
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matter of academic interest. As Mr. JusticeFrankfurter commented in an American decision-
'the fact that scholarly research has shownthat historical assumptions regarding theprocedure for punishment of contempts wereill-founded, hardly wipes out a century and ahalf of the legislative and judicial historyof federal lav based on such assumption.'
Such a comment seems to be particularlyappropriate with regard to. the position inEngland.” (Vide also Wede v. Robinson (38)).
The present basis on which the law ofcontempt is operated is undoubtedly Almon's case(supra) and in disposing of Mr.Mark Fernando'sargument we have also to conclude that the law ofcontempt has now reached the stage when it has to-be regarded as a separate branch of law carryingwith it its own principles and procedures.
While there could be some analogy betweencases of contempt of court and breaches ofprivileges of Parliament, it would be difficult andincorrect to equate cases of contempt of court tocases of defamation or slander. Although somecommon features are noticeable, they are basicallyrooted in different principles and constitutedifferent branches of law .While defamation is amatter of private rights and private law, contemptis an offence of a public nature. More particularlydefamation belongs to the branch of law known astorts and is governed by the Roman-Dutch lav. Itinvolves a transgression of a private right givingrise to a claim for damages. Criminal contempt wasorginally a misdemeanour and contains a strongpublic policy element. The applicable lav in thiscountry in the case of contempt is the English lav.Libel actions also admit of well recognised
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defences such as. justification, truth, faircomment, etc. But in the case of contempt byscandalising the court, the authorities indicatethat no such defences are permitted. The offence ofscandalising the court seems to be in the nature ofan absolute offence involving strict liability.
From the foregoing it must be accepted thatthere is a difference in kind and forms of actionbetween contempt of court and an ordinary libelaction. It would be sufficient for the present ifwe regard a libel action as one relating to privaterights as against the offence • of contempt whichrelates to a public matter, namely, theadministration of justice.
I now turn to the last ground urged by therespondents. The particular branch of the law ofcontempt we are now concerned with is called"scandalising the court".. Its object is to protectthe administration of justice and to preservepublic confidence in the system of justice. Thereare many different ways in which this offence canbe committed. Wilmot, J., in the celebrated Alison‘scase, (supra), observed of this type of contempt:
'It .excited in the minds of the people ageneral dissatisfaction with all judicialdeterminations,and indisposes their minds .' toobey them and whenever men's allegiance to thelaw is fundamentally shaken, it is the mostfatal and most dangerous obstruction , ofjustice and in my opinion, calls for a morerapid and immediate redress than any otherobstruction whatsoever; nor for the sake ofthe Judges, as private individuals, butbecause they are the channels by which theKing’s justice is conveyed to the people.To be'impartial,and to be universally thought so,are both absolutely necessary."
SC . _ Hewamanne v. De Sitsa (Wanasund&raJ.) ,■ 79
11 *i■■—-,»,■■■■■ ■'
•*.• **•9 -**„'.*.
Lord Denning more recently has said in "The Road to
Justice (1955)":.
"The judges must of course be* impartial; butit .is equally important that • they should beknown by all people*to be'impartial.' If theyshould be labelled by traducers,so that peoplelost faith in .them,. the whole ^ administrationof justice would Suffer-. It is* for this reasonthat scandalising,a ‘judge. is held to be agreat contempt and ’punishable by fine andimprisonment;"
Again, referring to. the contempt of
scandalising* the court, Barrie and Lowe in "The I-aw
of Contempt" states that-
■*
• m *.
"The necessity for this brand of contempt liesin the idea that without well* regulated laws acivilized community cannot -survive.lt istherefore most, important to maintain * theresshct and dignity of thq Court and itsofficers, whose task it is to. uphold andenforcg the lav,-, because Without such respect,public faith in .the administration-of .justicewould be undermined, and tjhe law- itself “ wouldfall into disrepute. "
These same-ideas have been given expressionto by. Sir James Martin, C.J., . in – He, The EveningNews Newspaper', (39), as. follows. ’
"What Are such.Courts but-the embodied forceof the'community whose rights they are.appointed toprotect? They- are not associations of a fewindividuals claiming-on their own personal -accountspecial privileges-and peculiar dignity by reasonof their position.. A Supreme* .Court like . thiswhatever.may be thought of the separate ■ memberscomprising it. is the accepted andc recognised.
80.Sri Lanka Law Reports[1983] 1 Sri LR.
}.■■■,■—-■■■- I I 'nr-…
^tribunal for the maintenance of the collective.authority of the entire community• it derives
its force from the knowledge that it has the wholepowers of the community at' its back.: This is apower unseen but it is efficacious and irresistibleand on its maintenance depends the security of thepublic."
But for an accurate legal definition of theoffence, we could rely on the oft, quoted statementof Lord Russel of Kilowen in R v. Gray (40):
Any act done or writing published calculatedto bring a court or a judge of the court intocontempt or to lower his authority is acontempt of court."
At one time it was thought that theprosecution for the contempt of scandalising thecourt was obsolete. In McLeod v. St. Aubyn (41),Lord Morris said:
"It is a summary process and should beused only from a sense of duty and underpressure of public necessity, for there can beno landmarks pointing out the boundaries inall cases. Committals for contempt of court byscandalising the court itself have becomeobsolete in this country.Courts are satisfiedto leave to public opinion attacks or commentsderogatory or scandalous to them. But it mustbe considered that in small colonies,consisting principally ofcoloured popula-tions, the enforcement in proper cased ofcommittal for contempt of court for attacks onthe cdurt may be absolutely necessary t6 pre-serve in such a c&saunity the dignity ofpect for the Court."
Lord Morris' statement about the offence ofQc8r ’alising the court being obsolete in England
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.was disproved in the following year in R v. Gray(supra), when the editor of the Birmingham DailyArgus was found guilty and punished for publishingan article which was described in the court as"personal scurrilous abuse of a judge as a judge."
It has been contended by the respondentsthat judges and their work are open to faircriticism and since the net^ item concerned doesnot go 'beyond those bounds and relates to a matterof public interest and concern, no contempt hadbeen committed by its publication. I shall nowproceed to examine the authorities cited bycounsel, starting with the English cases, toascertain whether or not the impugned news itemdoes not amount to a contempt according to theprinciples laid down in these cases.
In Re Vidal ,(42),the respondeat,dissatisfied with a judgment of the President ofthe Probates Division and Admiralty Division,paraded before the court house carrying a sandwichboard bearing the words: "Is Judge Sir Henry Dukeafraid to prosecute me ? I accuse him to be atraitor to his duty and of defrauding the course ofjustice for the benefit of the Kissing Doctor".This was described as "scurrilous abuse of theworst description" and the offender was foundguilty of contempt. In R. v. Freeman (43),therespondent was found guilty of scandalising thecourt for sending an abusive letter to the judge.In the New Statesman, ex parte« D.P.P. (44), thefamous Dr. Marie Stopes, an early advocate of birthcontrol, Was sued for libel by the editor of theHorning Post and damages Were awarded. against henthe New Statesman thereafter published an articleSuggesting that Justice Avory who heard the casehad Slldwed his religious convictions as A RomanGatholie to prejudice his summing-up. The articleconcluded with the statement: "The serious point inthis case however is that an individual owning to
82Sri Lanka Law Reports[1983] 1 Sri LR.
such views as those of Dr.Scopes cannot apparentlyhope for a.fair hearing in a court presided over byMr. Justice Avory – and there are so many Avorys".This was held to be a contempt. In R. v. Wilkinson(45), the editor of the magazine 'Truth” was foundguilty of contempt for publishing the following:- :
, "lord Justice Slesser who can hardly bealtogether , unbiased about legislation of thistype maintained that really it was a verynice provisional order or as good as one canbe expected in this 'vale of tears'."
The imputation made was that Slesser, L.J., when hewas Solicitor General, had steered the relevantlegislation through Parliament.
-The following cases from the Dominions alsoshow that the offence of contempt by scandalisingthe court'is.very much alive and far from obsoletein those countries. In X. v. United Fisherman andAllied Workers’ Union •,(46),the Court of Appeal of.Columbia upheld convictions for contempt on a tradeunion'and its officers for publicly initiating avote asto whether the union should comply with acourt order*. Again in In R. v.. Murphy ,(47),. an
article in a newspaper run by students at theUniversity of Mew Brunswick contained an attack onthe judge in a particular caseand also contained ageneral accusation worded as followst-r
"The courts in.New Brunswick are simply theinstruments of the corporate elite. Theirduty is not so much to make just decisions asto make right decisions (i.e. decisions thatwill further perpetuate the elite whichcontrols and rewards them.)Court appointmentsare political appointments; Only the naivewould reject the notion that an individualbecomes a justice or judge after he proveshis worth to the establishment."
I
SC Hewemanne v. De Silva (WanasunderaM83.
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This was held to amount to a contempt of court. InRe Borowaki , «(48), the Canadian Minister ofTransport of Manitoba was found guilty for imputingpolitical bias to a Magistrate. He had also used^language about the Magistrate which the Court heldto be "unbelievably outrageous".
In A.G. v. Blundell, (49), where the President ofthe New Zealand Labour Party said that "he hadnever known the Supreme Court to give a decision infavour of the workers where it could possibly avoidit",. Myres, C.J., held that this was a contempt.In Ro V. Western Printing ' and Publishing Ltd. ,(50), a newspaper contained the following passage
"The stern warning intoned earlier in theweek by the Chief Justice and his colleaguestaking the St.John's press and radio to taskfor publicising the Valdamanus1 case, has afaint tinge of the iron curtain to it. It isintimidation of the most blatant variety (theshut up-or-else type, that is). After readingthe article to which the eminent juristsobjected,the finding them in my opinion quiteinnocent of anything that might tend toprejudice a fair trial,I can only assume theadmonition was another move in the "jump-on-the press" campaign. The next step will bethe seizure and shut down of .all the island'spapers (except one ) a la Juan Peron."
Walsh, C.J. held that this article amounted tocontempt.
In Rex v. Wiseman, (51), allegations were madein writing by a solicitor that during a previouscase certain judges had – been guilty offorgery,fabricating evidence and showingpartiality. This was held to be contempt. In A.G,v. Re Goodwin, (52), in an action for malicious
• 84—:Sri Lanka Law Reports.. [1983] 1 Sri LR.
r• "1prosecution the respondent- was criticised by the—trial judge. Thereupon the respondent wrote tothe Attorney-General and a number of .Registrars ofthe local district courts, questioning whether thejudge was a suitable person to . be a judge, andimputing ulterior motives to him. This was held tobe a contempt.
It is now necessary to consider some of therecent developments in the U.K. relating tocontempt of court.The Phillimore Committee Report1974 noted that a change of attitude had quietlytaken place in regard to theoffence of
scandalising the court and once again a moreliberal attitude to such contempts was in evidence.The Committee said:
"Criticism has become more forthright inrecent years especially since the creation ofthe National Industrial Relations Court.Things have been said and published about theCourt and its President which couldundoubtedly have been made the subject ofproceedings for contempt. For example,in onepublication it was stated as a fact that thejudge had conferred in private with one partyto proceedings with a view to advising" thanabout the next step to take. Although thiswas untrue and a gross contempt, noproceedings were instituted.
Most attacks of this kind are best ignored.They usually come from disappointed litigantsor their friends.To take proceedings inrespect of them would merely give themgreater publicity and a platform from whichthe persons concerned could air their viewsfurther. Moreover the climate of opinionnowadays is more free. Authority includingthe courts is questioned and scrutinised morethan it used to be. The Lord Chief Justice
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said in his evidence to us.:
'Judges' backs have got to be a gooddeal broader than they were thought to beyears ago.'
It is no doubt because of this and inpursuance of the spirit of Lord Atkin's directionthat practice has reverted to what it was beforethe turn of the century when it was said that –
'Courts are satisfied to- leave to publicopinion, attacks or comments derogatory orscandalous to them.'
We feel that the time has come to bring the lawinto line with this practice."
Here we see the oscillation of the law fromone extreme to another. For a period of over 75years in the recent past, judges have shown amarked sensitivity to public criticism; but todaythey are inclined to e more liberal attitude.
Even the Phillimore Committee did notrecommend the doing away of this class of contemptwhich was thought at the turn of the century to beobsolete in the U.K. The Committee recommended thatthis branch of the law of contempt should bereplaced by a new and strictly defined criminaloffence triable on indictment as in the case ofordinary offences.
In Regina v. Commissioner of Police, ex parteBlackburn (53), Quintin Hogg,, Q.C., M.P.,published an article in "Punch" in which hevigorously criticised the Court of Appeal andincorrectly attributed to the Court of Appealdecisions which were in fact decisions of theQueen's Bench Division. He had written inter alia
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that the Gaming Act warn "rendered virtuallyunworkable by the unrealistic contradictory and inthe leading case,erroneous decisions of the courtsincluding the Court of Appeal." He also ridiculedthe court by suggesting that the court shouldapologise for the expense and trouble to which thecourt had put the police and criticised thestrictures passed by the court on lawyers,Parliament, and Police, when the mistakes were onthe part of the court itself.The Court of Appealin a restrained and dignified judgment held thatthis does not amount to contempt of court. Infairness to Mr Hogg, it may be said that thearticle did not contain any imputation ofpartiality or corruption to the court.Probably in aless permissive era, this article may have run agrave risk of being on the wrong side of the law*Lord Denning said:
"It is the right of every man, ' in Parliament,or out of it in the Press or over the broad-cast to make fair comment, even outspoke®comment on setters of public.interest. Thosewho comment can deal faithfully with all thatis done in a court of justice. They can saythat we are mistaken and our decisions., erro-neous whether they are subject to appealor not.”
Lord Salmon said:
"It follows that no criticism of a judgment,however vigorous can amount to contempt ofcourt provided it keeps within the limits ofreasonable, courtesy and good faith."
Both Mr Choksy and the Attorney-General relied onthe ■ Thalidomide cases. (54). They arose from acampaign conducted by the Times Newspaper againstDistillers, the manufacturers of a drug marketed bythem called Thalidomide, which resulted in
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. producing serious deformities in babies. Thecampaign was designed to pressurise Distillers intogiving the children, on whose behalf- actions hadbeen instituted, more generous compensation thanthe suggested terms of settlement. Times Newspapershad p’.'.blished one such article on which no actionfor contempt had been taken. They intendedpublishing another which was more detailed andhaving a direct bearing on the issues involved inthe case and notice of this was given to theAttorney-General. There had also beengeneral
public discussion of the plight of these childrenon the raido, T.V., and in a debate in the House ofCo&nons. One further fact that was consideredmaterial was that those cases had been dragging onfor a number of years. The Attorney-General ofEngland went into court and obtained an injunctionprohibiting the publication of the proposed articlein the Times, On appeal, the Court of Appealremoved the injunction.
Mr Choksy relied on Lord Denning's judgment,where he was of the view that the law authorisedfair comment by the newspapers in a matter of thisnature.lt should be noted however that this was nota case of contempt by scandalising the court; itwas a case of contemptprejudging pending
proceedings. Lord Denning said that in the uniquecircumstances of a profound national tragedy, itwas in the public interest that*- those issues shouldbe publicly discussed. It was also found that theonly extant legal proceedings had been dormant foryears and the injunctions were themselves a movetowards achieving a settlement. In thosecircumstances the court held that. the law ofcontempt which restrained comment on matterssubjudice did not apply. Denning, C.J., said:
in my opinion the .public interest inhaving it discussed outweighs the prejudicewhich might thereby be occasioned to a party
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to a dispute. At any rate, the High Court ofParliament has allowed it to be discussed. Sowhy should not we in these Courts also permitit. There is no possible reason whyParliament shall permit it and we refuse it."
In the case of contempt of court byprejudicing pending proceedings, considerationsother than those relevant in the case of contemptby scandalising the court come into play. Thestress in the Court of Appeal judgments is on thepossible harm that may be done to the privateinterests of the parties as against the publicinterest in the freedom of the public to beinformed of these matters. This is also made clearin an earlier passage where Denning, L. J., says:
"…..it must always be remembered thatbesides the interest Of the parties in a fairtrial or a fair settlement of the case thereis another important interest to beconsidered. It is the interest of the publicin matters of national concern and thefreedom of the press to make fair comaeat onsuch matters.The one interest must bebalanced against the other. There may becases where the subject matter is such thatthe public interest counter balances theprivate interest of the parties.In such casesthe public interest prevails. Fair comment isto be allowed."
On the other hand,when we consider the cases of-contempt of court by scandalising the court,.byreason of. a newspaper publication, both the compe-ting interests are of a public nature.
There had been a debate in Parliament, mainly onthe moral liability of the Distillers. Lord JusticeDenning in this context refers to Parliament as theHigh Court of Parliament. Mr Nadesan submitted thatthat expression could not be used with reference to
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the Parliament of this coun.try and to that extent,this case could hive no application to our case. Bsthat as it may, the Attorney-General relied on thefollowing,, passage from Denning, L.J's judgment ifrsupport of |iis submissions :-
"It ip desirable that the convention ofParliament as to matters of subjudice shouldso far as possible be the same as the lawadministered in the courts.The object of suchis the same-to prevent prejudice to pendinglitigation and the parties to it – and therules for achieving it should be the same,and for this very good reason: as scon usmatters are discussed in Parliament they canbe aiyi are reported at . large in thenewspapers. The publication in the newspapersis protected by law. Whatever comments aremade in Parliament they can be reported inthe newspapers without any fear of action forlibel or proceedings for contempt of court.If it is no contempt for a …newspaper topublish the comments made in Parliament, itshould be no contempt to publish the selfsamecomaea.ts mgide outside Parliament.”
The import of this passage is that a newspapercommits Ob libel or a contempt of court bypublishing the comments made in Parliament, meaningthe spoken debates.As I have shown earlier, thereis a distinction between the publication of thespoken debate and tfie publication of parliamentarypapers. The two are governed by differentprovisions of law. Strictly speaking, this casewould not accordingly apply to a case of thepublication of a parliamentary paper as in thepresent case.
Apart from that,Denning, L.J's statement wasclearly obiter and can also be distinguished onmore Substantial grounds.Leaving aside contempt forthe Moment,let us see whether his statement th&t a
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. .person does not commit a libel by the publicationof a parliamentary debate is a correct statement oflaw.This statement is undoubtedly too general andunprecise and does not reflect the correct legalposition with any accuracy. I have already set outthe passages in Erskine May and Gatley which showthat a newspaper publisher enjoys only a qualifiedprivilege in this regard and a publication which isnot for the public benefit or which is accompaniedby malice would render the publisher liable forlibel. There are also many other limitations onthis privilege to which reference has already beenmade, Denning, L.J., makes no references to those;so his obiter has to be accepted if at all withreservations.
On the other hand we find Scarman, L.J'sexpression of opinion reflecting more accuratelythe real state of the Law :
"It is clear that the House was not inhibitedfrom discussing the sort of questions that'The Sunday Times' would raise in the articleif published. It is also clear that theCommons took the view that their debate didnot transgress their own subjudice rule.TheCourts, subject only to the legislative powerof Parliament, determine what constitutescontempt of court and have a discretion as toremedy and punishment.”
In fact, the above goes directly against theargument the Attorney-General has submitted to us.
The following observations of P.M. Leopold onthis matter in her "Freedom of Speech inParliament" are again relevant. She says at page45;
"Since court reports are privileged becauseof the superior benefit of publicity, there
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_are certain restrictions on such,publications. Cockburn C.J. ( Wason v. Walter(supra)), expressly stated that therestrictions which applied to the reportingof court proceedings should also apply to thereporting of parliamentary proceedings. Thismeans garbled or partial reports will not beentitled to claim qualified privilege, norwill those which are blasphemous, seditious,amounting to a contempt of court orotherwise prohibited by law. The onlysuggestion to. the contrary is an obiterdictum by Lord Denning, M.R., in A.G. v. .Times Newspapers Ltd.., (supra), where hesuggests that newspaper accounts ofparliamentary proceedings have a greaterprotection thaR that indicated above.The caseconcerned contempt of court and Lord Denningsuggested that whatever comments are made inParliament, they can be repeated in thenewspapers without any fear of an action forlibel or proceedings for contempt of court.The other members of the Court of Appeal didnot comment on this matter nor did any memberof the House of Lords when it laterconsidered the case. It, is submitted thatLord Denning's remarks do not alter the legalposition."
The author say§ in footnote 72 on page 46 with
reference to Lord Denning's dictum:
"The only mention of the matter was a passingreference -by the Attorney-General in hisaddress to the House of Lords where he stated
(at p. 280) .; the fact that what was
said in Parliament about Distillers waswidely reported does not mean that there isno check on ,what may be published of themoutside."
[19S3J1 Sri LR,
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The subsequent.developments arising from thiscase are interesting and were brought to our noticeby counsel. There was an appeal »to the House ofLords from this decision and the House allowed theappeal. The House held that it was a contempt ofcourt to publish an article expressing an opinionoa the merits of a specific is$ite jadiich was fordetermination by the court in Circumstances suchthat the article gave rise to a rea^ risk that itwill prejudice a fair trial. Regarding thecitizens' right to a discussion of public mattersin relation to contempt Of court, Lord Reid puttingthe matter in a broader framework than the Court ofAppeal said:
"The law on this subject must be foundedentirely on public policy. It is not there toprotect the private rights of parties to alitigation . or prosecution. It is there toprevent interference with the administrationof justice and it should in my – judgment belimited to what is reasonably necessary. Forthat purpose public' policy generally requiresa balancing of interests which mayconflict.Freedom of speech should not belimited to any greater extent than isnecessary but it cannot be allowed wherethere would be real prejudice to theadministration of justice."
In the view of the Court of Appeal, the twointerests involved were a public interest asagainst a private interest. The House of Lordshowever decided the case on the basis of two-competing public interests though of.two differentkinds*.' It would also be poted that once the broaderconcept of public interest entered into the picturein the House of Lords, the decision of the Court ofAppeal had necessarily to be reversed.
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In a later passage appearing at page 81, Lard.Simon made it quite clear that the paramount publicinterest is that the legal proceedings shouldprogress without interference. Then Lord Simon geeson to say:
"But once the proceedings are concluded,the remit is withdrawn and the balance of'public interest shifts. It is true that thepan holding the administration of justice isnot entirely cleared. Hie Judge must go or totry other cases, so the court must not bescandalised. Further, jurors must beempanelled, so the departing jurors must notbe threatened.Witnesses in future cases must,be able to give honest and fearlesstestimony, so witnesses in past cases mustnot be victimised. But these things conceded,the paramount interest of the public view isthat it should be fully apprised of what hashappened (even being informed if appropriate,of relevant evidence that could lawfully notbe adduced at the trial.) and hear .unhampereddebate on whether the law, procedure andinstitutions which it had ordering haveoperated satisfactorily or call for itsmodification."
This passage also helps to dispose of anotherpoint raised by Mr.Choksy and also referred to inthe texts, namely that a case can be given over topublic comment once . the trial is over.The
principle is subject ^to– the exception ofscandalising the court and in the present case wehave not a discussion of the . case but theattribution of impartiality and corruption to thejudges who heard the case. It is also quite clearthat in a case of contempt by scandalising thecourt, on a balancing of two public interestsinvolved, thepublic interest in thedue
administration of justice must be conceded to beprior to the other public interest.
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Then, as regards the references to the Debatesin Parliament in the judgments of the Court ofAppeal, and sought to be made much of by counsel, Ifind that they too add up to nothing ..There issingularly little reference made to them in theHouse of Lords that can be considered worthwile. Infact Lord Reid said:
"Some reference was made to the debate in theHouse of Conunons.lt was not extensivelyreferred to in argument. But so far as I havenoticed there was little said in the Housewhich could not have been said outside, if myview of the law is right."
The only other reference I could find to thisdebate was in the opinion of Lord Cross, who said:
"The discussion in Parliament in which muchstress is laid on the judgments in the Courtof Appeal concentrated so far as I can seealmost entirely on the moral obligations ofDistillers.There is therefore no need toconsider whether, if members of Parliamenthad taken it on themselves to discuss thelegal issues in the case, that fact ought tohave affected the attitude of the courts tosimilar discussion in the press."
As far as U.K. decisions are concerned, thispronouncement of the House of Lords is the highestauthority and binding on English courts. Whicheverway the matter is looked at,; the Thalidomideease (supra) does not in the end support eitherthe contention of Mr Choksy or the Attorney-General.
Mr Choksy also brought to our notice twofurther developments regarding this case. The TimesNewspaper took the matter to the European Court of
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Human Rights claiming that the House of lords'judgment' amounted to a violation of certainprovisions of the European Convention on HumanRights, which were binding on the U.K. Government.In the meantime the Phillimore Committee Report towhich particular reference has been made by theEuropean Court was published. The report discussedthe various judgments in the House of Lords and wascritical of the prejudging test laid down by theHouse of Lords. The Committee recommended adifferent test based’on the formula adopted by theCourt of Appeal( Phillimore,L.J.., was himself oneof the judges who gave the Court of Appealjudgment), namely whether the words complained ofcreated a serious risk that the course of justice'may be interfered with.
The European Court, split 11 – 9, held thatthe restriction imposed on the Sunday Times by theHouse of Lords was not necessary’ in a democraticsociety for maintaining the authority andimpartiality of the judiciary. The decision turnson an interpretation of Article 10 (1) and (2) ofthe European Convention on Human Rights. ThoughArticle 10 bears superficial resemblance toArticles 14 and 15 of our Constitution, they differa great deal when closely examined in theirappropriate contexts. The majority and minoritydiffered as to the extent to which it was properfor the European Court to review a decision of thenational courts. Hitherto the law and practice ofthe European Court had been to refrain . frominterference with the decision of a national courton a question affecting the fundamental freedoms,leaving to such local court ”a margin ofappreciation". In this case however,the majoritydistinguished between a restriction of a. domesticcourt decision, protecting morals where a. wide"margin of .appreciation" was allowed and a re-striction designed to maintain the interest of andimpartiality of the judiciary.where the "margin ofappreciation" should be narrower. They admitted
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that their approach could not be same as that ofthe House of Lords which sought to maintain abalance between freedom of speech and the dueadministration of justice, but had to be of atribunal interpreting an international conventionwhich laid down a general right of freedom ofspeech, subject to a number of exceptions whichmust be narrowly interpreted. In this process ofinterpretation the European Court placed thegreatest emphasis on the words "as are prescribedby law and* are necessary in a democratic society,"in Article 10 (2). The Court held that the word"necesary" in this Article implied the existence ofa "pressing social need" and accordingly held thatthe injunction imposed on the Sunday Times was notsuch a "pressing social need" and not proportionateto the legitimate aim pursued. This approach of theEuropean Court is radically different from the waythe English Courts have looked at the matter.
There was a further sequel to this judgmentof the European Court» In the U.K.., statutoryprovision was made.by the 'Contempt . Of Court Act1981, both to give effect to the PhillimoreCommittee recommendations and to try and make thelaw in England conform to these developments. Thecourts too in a subsequent decision, Attorney-General v. 8.6.C., (55), have taken note of theinternational obligations undertaken by the U.K.Government and. the need to give effect to them asfar as possible. Thus, Lord Scarman said:
"I do net doubt that, in considering how farwe should extend the application of contemptof court, we must bear in mind the impact ofwhatever decision we may be minded to make onthe international obligations assumed by theUnited Kingdom under the European Convention.
If the issue should ultimately be a
question of legal policy, we must have regardto the country's obligations to observe the
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European Convention as interpreted by tfoeEuropean Court of Human Rights …..".
The Court however pointed out that theEuropean Court would necessarily have to approachsuch matters differently from an English Court,having regard to the provisions of the Convention.The European Court would not be concerned withdeciding an issue between two conflictinginterests, but would be applying a singleprinciple, freedom of speech, subject to a numberof exceptions which must be variously interpreted.It is therefore inevitable that the decisions ofthe U.K. courts and the European courts woulddiffer and will not be the same. If this later casehas any bearing on the present case, it is to showthat as a decision of the highest domestic court inthe U.K., the House of Lords' decision in the Timescase must remain as the final pronouncement on .thesubject.
We have seen the different views expresed bythe English courts at different times. The presentliberal views prevailing there no doubt reflect thestate of the permissive and open society that isnow prevalent in the West. We on the other handfortunately or unfortunately depending on how onelooks at it are still wedded to conservative andtraditional values. To that extent there would bedifferent, approaches ..to this problem between us andthe U.K. But except for a- few isolated, instances,-even in the U.K., an attack on the core of thejudicial process, namely the honesty andimpartiality of the judiciary, has always been heldto be a contempt.We have seen that the PhillimoreCommittee, in spite of the prevailing liberalattitudes in the U.K., recommended the retention- ofcontempt in respect of scandalising the court, andonly suggested that it be made an indictableoffence.
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However, in an Australian case, Nicholls (56),Griffiths, C.J., said:
"I am not prepared to accede to theproposition that an imputation of partialityis necessarily a contempt of court. On thecontrary, I think that if any judge of thiscourt or of any other court were to make apublic utterance of such a character, as tobe likely to impair the confidence of thepublic or of suitors or any class of suitorsin the impartiality of the court, in anymatter likely to be before it, .any publiccomment on such utterance,if it were faircomment,would, so far from being a contemptof court, be for the public benefit and wouldbe entitled to similar protection to thatwhich comment upon matters of public interestis entitled under the law of libel."
This is undoubtedly in the nature of anexception and could be justified in cases where thejudge by his own conduct – of which there should beno dispute.it being apparent – impairs publicconfidence in the- administration of justice. Inthis case it was the * judge .himself who made apublic’ statement compromising the judiciary. InSuch rare cases it is understandable that the courtshould allow fair comment on such self evident andproven misconduct.
Turning $ to the legal position in thiscountry, we find thatrour courts have been ' enabledto adopt a more conservative attitude than thatprevailing in the U.K. It will be. recalled that inMe iiaod'Gcasti.supra), 'Lord Morris' expressed theview that, while the offence of contempt byscandalising the court had become obsolete in theU.K., in the colonies the enforcement of committal
SCHewamanne v. De Silva (Wanasundera^l.)99
. for contempt for attacks on the court was -absolutely necessary to preserve in such communitythe dignity of and respect for the court.
The distinction Lord Morris drew between theU.K. and "small colonies consisting principally ofcoloured populations" is couched in the language ofa bygone age, but the distinction he drew could besupported on more reasonable grounds. It wouldappear that Lord Morris' statement was not a straystatement made in passing, but one that had beenmade after due deliberation. In Asbard v. TheAttorney General of Trinidad and Tobago,(57), LordAtkin in his classic judgment quoted those words ofLord Morris and added:
"And that in applying the law the Board willnot lose sight of local conditions is madeclear in the judgment in Me Leod v. St.Aubyn."(41)
As late as 1943 in Debi Prasad v. King EmperorLord Atkin had occasion to revert to thismatter once again. He said :
"In 1899 the Board pronounced proceeding^, forthis species of contempt to be obsolete inthis country though surviving in other partsof the Empire."
The British colonial empire was a far flungone stretching East and West, North and South. Itembraced a variety of peoples and races andreligions, each with its own social and culturaltraditions. The application of a uniform law tosuit the'widely different local conditions was notpracticable. We must particularly guard ourselvesagainst the temptation of the indiscriminate use ofdecisions of Western countries which have their own
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i:1isocial mili&u and reflect the permissive values oftheir societies as a substitute for ourdWn
thinking. In fact, even the case law from some ofthe dominions show that they have been as eager aswe have been to preserve this branch of the law ofcontempt iq its vigor, notwithstanding the doubtsentertained on the matter in the U.K. One of theearliest cases found in our law reports dealingWith this type of contempt is theRule on
PoA0 Capper{59). In this case 1the Supreme Courtheld that an.article by a newspaper editor makingderogatory references to the members oF the jtiry ina criminal trial was calculated to insult the juryand scandalise the court. The article in questionwritten in ^sarcastic vein set out the views of the"Sapient Jury" and suggested that their "namesshould be struck off the English speaking list -were such a course feasible – as being incompetentto try a person who may claim them dh his 'peers.'"
In the matter of a Rule on Artnand deSouza,(60), the Supreme Court heldthat the
deliberate and wilful publication in a newspaper offalse and^fabricated material concerning a trialcalculated to hold the court or the judge to odiumor ridicule amounts to a contempt of court. Inanother case concerning the same respondent, Armandde Souza(61), the respondent as the Editor of theCeylon' Morning Leader, had written that the PoliceMagistrate, Nuwara £liya^'v was .partial to thepolice view and is often open to assistance orsuggestion from the police and that they would notreceive "this tremendous advantage" but for thefact that he improperly conducts part of hisbusiness in chambers. The respondent also allegedthat the Magistrate defers far too much to plantersand that his mind is very difficult of access toconviction hostile to tfye interests of a Europeanplanter. The court held that evidence to prove thetruth of the allegations of fact and truth of hisown interpretation of his language was irrelevant.
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The court held that the law of contempt byscandalising the court was still in force inCeylon. Wood Renton, C.J., after referring to theEnglish cases said:
"There is, as I have said, no kind of doubt asto the right of any member of the ptiblic tocriticise, and to criticise strongly, judicialdecisions or judicial work, and to bring tothe notice of the proper authorities anycharge wtw» ever of alleged misconduct on thepart of the Judge. But it is a very 4ifferentmatter 6© claim that irresponsible persons,upon ex parte statements, are to be at libertyto invite themselves i.nto the judgment seat,and to scatter broadcast, imputations such asthose with which we have here to do. The lawof contempt, as has often been pointed outboth in England and in this Colony, exists inthe interests, not of the Judges, but of €hecommunity. The Supreme Court would be false toits duty if it permitted attacks of this kindto go unpunished."
In another case, the Rule, on Hulugalle ,(62),the respondent who was the Editor of the CeylonDaily News was charged with contempt in respect ofcertain passages appearing in a leading articleheaded "Justice on Holiday". The court held thatthe article imputed a serious breach of duty 'to thejudges of the Supreme Court in taking anunauthorised holiday during August for the purposeof attending a race meeting – whereas in fact theAugust vacation was authorised by statute – andcontained a further imputation of dishonesty to thejudges in attributing the arrears of work to lackof staff when it was really due to their addictionto sport instead of conscientious, devotion to duty.The court held that this was a serious contempt,but added:
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"It would be thoroughly undesirable thatthe press should be inhibited from criticisinghonestly and in good faith the administrationof justice as freely as any other institution.But it is equally undesirable that suchcriticism should be unbounded"
An application to the Privy Council for SpecialLeave was refused in this case.
In Veerasamy v,. Stewart,(63), the editor of anewspaper published editorials, letters and reportof a speech pending a non-summary inquiry of such acharacter as to create an atmosphere of prejudiceagainst the accused. It was held that this amounted. .to contempt of court, and that it was not essentialto establish that the respondents intended to pre-judice the fair trial of the petitioner.
In Perera v, The King,(64), the appellant whowas a member of Parliament, as was customary, paida visit to the Remand Prisons, Colombo.A complaintmade to him, that some prisoners had not beenpresent in court when their appeals had been heard,was recorded by him in the Prison Visitors' Book.The material portion of the entry was:
"..^..The present practice of appeals ofremand prisoners being heard in their absenceis not healthy. When represented by Counsel orotherwise the prisoner should be present atproceedings"
The practice referred to was a practice thathad originated in an order of a previous ChiefJustice relating to unstamped petitions which weredealt in chambers by a single judge of the SupremeCourt. It did not involve a differentiation betweenprisoners who were and who were not defended,nordid it involve a hearing. The complaint made to the
sc
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103
appellant was made on a misapprehension of thecorrect position, which was not known to theappellant. A rule was issued on him and he was con-victed by the Supreme Court* In appeal to thePrivy Council, Iheir Lordships held that the con-viction cannot bp sustained. They said:
" They have given the matter the anxiousscrutiny that is due to any suggestion thatsomething has been done which might impede thedue administration of justice in Ceylon. Andit is proper that the Courts there should bevigilant to correct. any misapprehension inthe public that would lead to the belief thataccused persons or prisoners are denied aright that ought to be theirs. But Mr.Pereratoo has rights that must be respected, andTheir Lordships are unable tb find anything in.his conduct that cones wi.thin the definitionof Contempt of Court. That phrase has notlacked authoritative interpretations. Theremust be invloved some 'act done or writingpublished calculated to bring a Court or ajudge of the Court into contempt or to lowerhis authority’ or something 'calculated toobstruct or interfere with the due course ofjustice or the lawful process of the Courts’:see Reg, v. Gray,(supra).
What has been done here is not at all thatkind of thing, Mr.Perera was acting in goodfaith andia discharge ofwhat He believed tobe his duty as a member of the Legislature.his information was inaccurate, but he made nopublic tidjife; of it, contenting himself withCentering his comment in the appropriateinstrument,, the Visitors' Book, and writing tothe responsible Minister. The words that heused made no direct reference to the Court, orto any judge of tpe Court, or indeed to thecourse of justice, or to the process of the
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Courts. What he though?:: that he was protestingagainst was a prison regulation, jand it wasnot until some time later that he' learnt that,.in so far as a petitioner, had his petitiondealt with in his' absence, it was theprocedure of the Court, not the rules of theprison authorities, that brought this about.■Finally, his criticism was honest criticism ona matter of public importance.When these andno other are the circumstances that attendedthe action complained of there cannot beContempt of Court."
In the case of in re ^ickramasihghe ;tC5),the respondent who in the course of a speech at apublic meeting criticised the judiciary in such amanner that no person who may have been persuadedby his speech could continue to have confidence inthe jury was held to have committed a contempt ofcourt.,
In Vidyasagara v. The Queen , (66),therespondent, an advocate appearing for a unionbefore the Industrial Court, read out the followingstatement from a typewritten document
"…..In the circumstances, the Union
having felt that this court by its order hadindicated that an impartial inquiry could notbe had before it, has appealed to the Ministerto intervene in the matter.- The Union istherefore compelled to withdraw from theseproceedings and will not consider itself boundby any Order made ex parte which the Unionsubmits would be contrary to the letter andspirit of the . Industrial Disputes
Section 40A(1) of the Industrial Disputes Actstates that a person who without reason publishes
SCHewamanne v. De Silva (WanasunderaJ.) _t i05
IJ1— —:—
. any statement or does any- act that brings theIndustrial Court into disrepute during the progressor after the- conclusion of an inquiry, commits .. anoffence of contempt against or in disrespect ofsuch Court.
The Privy Council held that the allegation ofpartiality was an imputation of prejudice to ‘thecourt, which was contempt. It was also argued thatit would not be contempt for a . counsel to allege •partiality of a court as this would restrict unduly,counsel* s arguments on a hearing in certiorariproceedings. The Privy Council said that "differentconsiderations apply when an attack is made in acourt of review on the impartiality of a lowercourt. It may be necessary in certain cases forcounsel in compliance with his duty to his clientto allege partiality of the lower court."
Another case strongly relied on by.therespondents was the Privy Council decision inPerera vs. Pieris,((j7). This was. an action fordefamation and did not deal with contempt of court.The defendant who was the printer and owner of thenewspaper had published an extract from thepublished report of a Commissioner appointed understatutory powers to inquire into allegations ofbribery against members of the Legislature. Theplaintiff alleged that this was defamatory of him.The Commissioner had sent the Report to theGovernor who had it printed as a Sessional Paper.
It was released to the public simultaneously with aGazette Extraordinary which published the text of aBill enabling the State Council to expel a memberfor accepting a bribe. In accordance with theprevailing practice the Press was sent:a copy freeof charge. Practically the whole of the Report waspublished in the newspapers.
Their Lordships did not enter into an inquiry as towhether the proceedings before the Commissioner was
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‘ ,L ' /•
‘ . *»a judicial or quasi-judicial proceeding or a.
parliamentary proceeding as contended* for by thedefendant. It therefore deals with a situationwhich is sui generis. The Privy Council sought toabstract from the defence of privilege which was adefence to an action for' defamation, its wideunderlying principle. This Their Lordships foundwas the "Common convenience and welfare of society"or " the general interest of society" or the"balance of public benefit from publicity".
In the Roman-Dutch law which was applicable,anmimusinjurandi was an essentia© element of thedelict of defamation. If a publication can be shownto be made in the public interest, it would beprivileged and this would be sufficient to rebutanimus injurandi. In the case of the publication ofjudicial and parliamentary proceedings, the courtwill, having regard to. the nature of the activitiesof those two institutions, treat the publication"as conclusively establishing that the publicinterest is forwarded". But this statement shouldbe understood in that context, namely of apublication amounting to a libel. As shown earlier,this case along with Wason v. Walter (1) and othercases relating to libel stand in a class apart fromesses of contempt of court.
It is clear that the Privy Council wasdealing here with the defence of public interestavilable in an action for defamation to rebutanimus injurandi. It was not even dealing as suchwith the problem of balancing a private interestagainst a public interest much less with thebalancing of two public interests which arise incases of contempt. It is also not clear from thelanguage whether Their Lordships were thinking ofthe reporting of Parliamentary debates, meaning thespoken debate as against the publication ofParliamentary papers which, as I have shown, wouldbe governed by a different set of orincioles.
SCHewamanne v. Da Silva (Wanasunderajj. 107
i.~ i .- ::''.' ,——- –
Coming back.to the case before us, it would,be seen not only from the local bases but alsothose from other jurisdictions that the allegationscontained in the publication constitute a contemptof court. Even judges with the most liberal viewshave not countenanced allegations of partialityand dishonesty against judges. 1 have no difficultywhatsoever in' coming to the conclusion that therespondents by their publication had committed acontempt of court.
I should not conclude without referring, tocertain additional factual'matters which Mr.Choksybrought to our. notice in his reply. The firstconcerns an earlier motion in Parliament reflectingindirectly on the conduct of a judge which had beenpublished.by a newspaper, but no action had beentaken on it. The second referred to the report of aspeech made by the Chief Justice to the BarAssociation where he advocated an increase in thesalaried Of the judges and said that under thepresent salary structure, corruption was beginningto infiltrate into the judiciary. It was generallyknown that the services of one or two minor courtjudges had been terminated on suspicion ofcorruption.
Assuming that the publication of that motionor report of the speech to the Bar Associationcould be regarded as constituting a contempt ofcourt – and this is debatable – no conclusion couldbe drawn from the fact that there had been inactionon the part of authorities or the courts on thosetwo occasions. Both in the U.K. and even here,there have been occasions when, for some reason orother, matters in which action could or should havebeen taken have not been pursued. For example, thePhillimore Committee mentioned that things havebeen said and published about the NationalIndustrial Relations Court which clearly amountedto contempt, but no action was instituted in those
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cases. Shetreet in his; Work ’'Judges-on Trial" givesnumerous instances where jitdges and •' the judiciaryhave found themselves * helpless in the face ofadverse circumstances. Hie4 state of. public opinionwidely prevalent is undoubtedly, a relevant factorin deciding as to whether or. not a court shouldtake action for behaviour-suggesting a .contempt ofcourt, for Miller in. his work "Contempt of Court"has aptly Observed: :
"Comment' may well – be. named, as relativelyinnocuous . in , one . jurisdiction, and asscandalising the, court:*••'&&:'Mother". Equallywithin the same
ias likely to -dea.tr'-courtsat one period of history, and. -'as unworthy ofattention at another. By the rSame token adifferent response may well: be 4 warrantedaccording to Whetherthec0aaehtrelate3 to acontemporary case of /to-a-ease beginning to- recede into histoty."
ill'though .the. vConstitution does notspecifically 'Tefetf'tdX^vthe.'-^isiiV ’the provisionsguaranteeing: the 3,undame^^ speech andexpression to every citizen are .adequate to ensurethe freedom of the Press in this country. Hie Pressof course does not have any specialiprivilege andit enjoys no greater rights -.taiinXai^^efflb^Xdf;1' thepublic. This, does not mean that ve'V&ahX te ^devalueand minimise thc importance of the Press and thegreat service it performs, in our xsociety. Thefourth ©State is now considered essential for theproper functioning of democracy which la founded onthe premise that an informed public will have theright of unfettered discussion of the affairs ofgovernment to enable the® to tome to correctdecisions. Hence two elements are invloved, thefreedom to express one’s views and Its corollary*the right to receive information* for public debate
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.cannot take place without – one being properlyinformed. No private citizen today can for thispurpose garner all the news and information byhimself. The Press fills this need and comes to theassistance of the public and constitutes one of theprincipal vehicles for this .-purpose* The public nodoubt owes a great debt to the media for thisservice.
While we greatly appreciate and value therole of the Press' for its contribution to theexistence of an open society and are prepared < toallow as much latitude as is reasonably necessaryfor the. performance of that service, the courtshowever are compelled to sit up and take note whenthe acts of the Press go beyond accepted bounds.Fortunately such instances are infrequent, morerare are cases where the offence is committedcalculatedly and with deliberation. Such is not thecase here.
Our courts derive their authority from theConstitution which our People have adopted andgiven unto themselves. That authority is a sacredone and held in trust for the welfare and securityof the People. The power we judges are called uponto exercise is nothing less than that part of theSovereignty of the People which had been delegatedto the courts as their chosen, instrument for thispurpose. Contempt against the .. judiciary istherefore an insult offered to the authority of thePeople and their/Constitution. The law of contemptdoes net exist for the personal benefit of thejudges*. As Lord Denning said, lee me say at oncethat we will never use this jurisdiction as a meansto upheld gut own.dignity. It is therefore the dutyof the .seurts to tome to the defence of theCoins tit iitioh and uphold the dignity of the courtswhenever ad affront has been offered to them.
Chief Justice Hldayatullah in his judgment in
[1983] 1 Sri LfL
1J0Sri Lanka Law Haports
Cooper y. Union of India. t (68), has expressed inmemorable words what is broadly the attitude of thecourts in these matters:
"There is ho doubt that the Court like anyother institution does not enjoy, immunity fromtheir criticism. This Court"does not claim tobe always right although it does not spare anyeffort to be right according to the best ofthe ability, knowledge and judgment of thejudges. They do hot think themselves inpossession of all truth or hold that whereverothers differ from them, it is so far error.No one i.s. more conscious of' ,his limitationsand fallibility than a judge but because ofhis training and the assistance he gets froglearned. Counsel he is apt to avoid mistakesmore than others ……… ii We ■ are constrained
to say also that while fair and temperatecriticism of this Court or any other Courteven if strong, may not be actionable,attributing improper motives, or tending tobring judges or courts . into hatred andcontempt or obstructing directly or indirectlywith the functioning of Courts is seriouscontempt of which notice must and will betaken. Respect is expected not only from thoseto whom the judgment Of the Court isacceptable but also from those to whom it isrepugnant. Those who..e^rt.;in; their criticism byindulging in vilification of the institutionof courts, administration of justice and theinstruments through which the administrationacts, should take heed for they will act attheir own peril. We think this will be enoughcaution to persons embarking on the path ofcriticism."
While I hold that the respondents are guiltyof a contempt of court, I am prepared to accepttheir statement that they did not have a deliberate
sc
Hewemsnne v. Da Silva i dor Perera^J.)
Ill
intention of interfering with the administration ofjustice, though their publication has that effect.In meting punishment we have to consider thetotality of the circumstances relating to thismatter. The fact that a parliamentary motionimpliediy reflecting on the conduct of a judge hadpreviously been published without attractingthereto the laws of contempt’ of court arid theuncertainty of the legal position in view of therecent constitutional changes, which may havemisled even the legal advisers, are mitigatingfactors which will take into consideration. It istherefore possible for a merciful view to be takenof the conduct of the respondents. But, havingregard to the proposed order of the majority, it isunnecessary to pursue the question of punishmentany further.
This court, by its majority decision,,therefore, confirms the Rule issued on therespondents but, in view of the mitigatorycircumstances, imposes no punishment. They areaccordingly discharged.
ViCfOR rxPf-n'A, J.
In this case, a Rule was issued by this Courtafter a perusal of the petition and affidavit filedby the petitioner and after hearing Mr.S.NadesanQ.C., who appeared for him. The petitioner allegedthat the 1st respondent was the 'Editor of the"Daily News" of which the 2nd respondent was theowner, printer and publisher. The petitioneraverred that in the issue of "Daily News" of the7th of March 1983 there appeared a news itemprominently displayed. under the heading "SelectCommittee Probe of^Mr.K-.C.E. de Alwis'representa-tions". He alle|eci« thac| che^ news item taken'as a whole and in its par tiT seeks to cast adoubt on the impartiality and *integrity of . theJudges of ■ the Supreme Court and thus to weaken
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public confidence in the administration of justiceend that this publication scandalised the Judges ofthe Supreme Court and was calculated to lower theprestige of the Court.
This petition was filed on the 14th March,1983but no reference was made to the fact that thisnews item actually reproduced a motion which hadbeen printed on 5th March,1983 by Parliament to beon the Order Paper of the 8th of March , 1983. Thisfact was not disclosed to the Court and there was asubtle attempt by the petitioner to impute a motivefor the publication by the 1st respondent bypleading that the 1st respondent was a nephew ofMr.K.C.E.de Alwis, a former Judge of the ' Court ofAppeal and a member of the Special PresidentialCommission.
On the material placed before this Court andon the submissions made by Counsel for thepetitioner there appeared to be a prima faciecontempt and this Court issued a Rule.
The respondents appeared in Court andpleaded not guilty to the charge. The 1strespondent filed a comprehensive affidavit settingout the facts antecedent to the publication of thenews item and setting out his defence. He'specifically denied that by the publication heintended the result alleged by the petitioner. The2nd respondent filed several documents to provethat several other newspapers had published thesame news item on the 7th March,1983 as a matter ofpublic interest and relied on the defence pleadedby the 1st respondent.
At the hearing of this matter after the Rulewas served, Mr.Nadesan, Q.C., specifically statedthat he was not relying on the allegation made bythe petitioner about the alleged relationship ofthe 1st respondent tc Mr.K.C.E.de Alwis and
SCHewamanne v. Da Silva {Victor PereraJ.)113
J _
apologised for this irrelevant averment finding aplace in the petition and affidavit of his client,the petitioner.' He categoricallystatedthatno
malice.was alleged or relied on by the petitioner.
The contention of the respondents was thatthe news item published was a factual and correctreproduction of the contents of the Order Paper ofParliament which was to besetdownfor
consideration under the heading "Public Business"for the 8th March,1983.
The contention on behalf of the petitioner atthe hearing was that the contents of the motion asappearing in the copy of the Order Paper to beincluded in the business for the 8th March , 1983constituted a contempt of the Supreme Court and itsJudges solely because the matters to be probed asstated in the Order Paper relatedtotheSupreme
Court and referred to the conductoftwoofits
Judges.
I propose to deal first with the affidavit ofthe 1st respondent and the documents annexed to theaffidavit. In the affidavit the 1st respondentrefers to the fact that by warrant dated 29th July,1978 His Excellency the President had established aSpecial Presidential Commission of Inquirycomprising Justice J.G.T.Weeraratne, JusticeS.Sharvananda and Justice K.C.E.de Alwis and thatthe Commission had been functioning since that dateand that Parliament had acted on the reports madeby the Commission from time to time. In July1982,Felix Dias Bandaranaike, a person against whomthe Commission had made an adverse findingpetitioned the Supreme Court for a .Writ of QuoWarranto and prohibition against Mr.de Alwis. Theappointment and the proceedings of the SpecialPresidential Commissionhadbeen givendue
publicity in the press and other media.The
allegations made by Felix Dias Bandaranaike weregiven much publicity in the Press. The document
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Rl(l) was produced as this news item dated 10th,-July,1982, Every single step taken in the SupremeCourt in connection with this application was givenfull coverage by the news media as is evidenced bythe documents R1(2) to Rl(51) from July 1982 up tothe 29th Ocotober$ 1982. The contents of eachseparate judgment'of the three Judges too werepublished and the majority of the two judgesdirected that the Writ of Quo Warranto do issue.However, Mr. de Alwis still continued as a memberof the Special Presidential Commission as HisExcellency had not removed him. Mr. de Alwis as amember of the Commission thereafter appears to havemade certain representations to His Excellency thePresident under whose warrant he was still amember.
This fact and also the fact that varioussteps were being contemplated to investigate .theserepresentations were also given considerablepublicity in the Press. The documents Rl(52) toRl(58), being news items from 29th December,1982 tothe 6th March,1983 show that the Press had. informedthe public of all these developments and that theSri Lanka Bar Association too had got itselfinterested. There could be no doubt that the Peoplewere interested ih all; these matters and’ wereentitled to know the outcome of them all.
It was in the background of this publicitythat the news items in the "Sun" paper and the"Daily News" paper of the 3rd March,1983 announceddetails of Cabinet Decisions and intimated to thepublic that the Cabinet had decided on 2nd March,1983 to appoint a Select Committee of Parliament toinquire into the representations made by Mr.deAlwis. Parliament thereafter proceeded to preparethe questions to be probed by the Select Committeeto be appointed. The draft motions and the specificquestions that were to be raised were formulated atthe Office of the Lead, t o£ the House of Parliament *
SC1Hewamanne v. De Sitva (VictorPerera,J.)ill5
and communicated to the Secretary General of Parliament before the impugned news item appeared. In support of their contention the respondents produced aletter dated 4th March,1983,R1(2) signed by theSecretary of the Leader of the House of Parliamentaddressed to the Secretary General of Parliament to.which was attached the draft of the motion underthe name of the Minister of Justice. This motionhad then been forwarded to the Government Printerto be included in the printed Order. Paper for the.8th March,1983. The Order Paper so printed had beensent in due course to the Delivery Section of theCentral Mail Exchange (1R5) by the SecretaryGeneral of Parliament .and according to (1R6) theprinted copies of the Order Paper for the 8th,March1983 had been delivered to Members of Parliamentand the news media including the "Daily News” onthe 5th March,1983. There can be no doubt that thepublication of this Order Paper was notspecifically prohibited or specifically authorisedby Parliament but rather Parliament had in theordinary course of business provided specialfacilities to the news media to see that theyreceived Order Papers of Parliament well in advanceof the date on which matters in the Order Paperwere actually taken up for the purpose of givinginformation to the reading public. The Order Paperforms part of the parliamentary proceedingsreferable to Parliament and not attributable to any-one…outside Parliament.
The preamble to the motion reads as follows
."Whereas Mr. K.C.E. de Alwis former Judge of theCourt of Appeal and a member of the SpecialPresidential Commission has made representa-tions to – His Excellency the President ofthe Democratic Socialist Republic of Sri Lankaregarding the conduct of the proceedings ’relating to application No. 1 of 1982 andother matters relating thereto, this Parlia-ment is of opinion that a Select Committee be
-116Sri Lanka Law Reports[1983] 1 Sri LR.
appointed to inquire and report to;Parliament etc. on the various mattersenumerated under items (a) to (f).
Thus it is clear that the respondents were notmade aware of the specific representations made byMr.de Alwis and that the respondents did notpurport to publish such representations. It hadbeen established in these proceedings that theCabinet of Ministers had on 2nd March,1983 decidedto appoint a Select Committee of Parliament(Rl(54)) to inquire into the said representationsand Parliament thereafter proceeded to formulatethe questions to be probed. The motion and thespecific questions to be probed were formulated atthe Office of the Leader of the House of Parliamentand communicated to the Secretary General of•Parliament. This was the starting point of theparliamentary process by which the matterultimately reached Parliament for consideration anddebate. The standing orders of Parliament wereproduced by the respondents in Court. According toStanding Order 9 (4) the preparation of the OrderBook showing the business of a particular day isone of the duties of the Secretary General.Standing Order 78 provided as follows
"78. The conduct of the President or actingPresident, members of Parliament, Judges orother persons engaged in the administrationof justice shall not be raised except upon asubstantive motion and in any amendment,question to a Minister or remark in . a debateon a motion dealing with any other subject,reference to the conduct of such personsaforesaid shall be out of order."
Therefore, this Parliamentary process was initiatedin terms of the Standing Orders. Under the heading
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117
. 'Independnce of the Judiciary' in the Constitution,Article 107(1) and (2) provides not only for theappointment of Judges hut also for removal ofJudges on the ground of 'proved misbehaviour orincapacity' after an address presented inParliament. No doubt this motion was not an addressin terms of Article 107(2) but was a motion dealingwith the conduct of some Judges of the SupremeCourt. Article 107(3) provides as follows
"3.Parliament shall by law or by Standing'Orders provide for all matters relating to thepresentation of such an address-, includingprocedure for the passing of such address tbeinvestigation and proof of alleged aisbehaviour end incapacity etc."
While Article 107(2) provided for an address onthe ground of proved misconduct or incapacity, theConstitution in Art. 107 (3) gives Parliament theright to make provision by law or by StandingOrders for the investigation and proof of allegedmisbehaviour or incapacity which of necessity mustprecede any action under Article 107(2).
Taking into consideration all these factscould- it be said, that the contents of the motionon the Order Paper, the printed copy of which wassent to the respondents on the 5th March 1983before it was actually taken up for considerationon the 8th March 1983, was a publication by therespondents calculated to bring the Supreme Courtor any of its Judges into contempt? In my view thepublication of this news item must be considered inits proper context, but not as something apart asMr.Nadesan, Q.C., invited us to do, merely becausethere is a reference to the Supreme Court and tosome Judges.
There is no criticism of or comment made on
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[1983] 1 Sri LR.
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the Supreme Court or any of its Judges even by theperson who was to introduce the motion. The 1strespondent himself had not personally mad. anycomment, allegation or criticism of what happenedat the hearing of the application made againstMr.K.C.E.de Alwis or made any criticism of thejudgments or orders of the Judges. He has not evenreproduced the contents of the represe tations madeby-Mr.de Alwis to His Excellency the Pre ident. The1st respondent had reproduced the entirety of thetext of the motion of .the Order Paper which hadbeen prepared for consideration by Parliament,, onthe 8th March 1983 under the heading ’PublicBusiness'. No doubt there was an editorial givingprominence to some questions to . be probed butwithout comment.
I have- endeavoured to enumerate the facts asset out by the respondents as in my view without a.proper appreciation thereof a discussion of the lawapplicable would be an academic exercise,Mr.K.C.E.de Alwis rightly or wrongly appeared tothink that he had a legitimate grievance and he wasundoubtedly entitled to protest about it. It wasnot done publicly but by a representationcommunicated to the Head of the State who appointedhim as a member of the Commission and under whosewarrant he had still the authority to function assuch member of. the Commission. This was theauthorised channel available to him to make hisrepresentations. Thereafter the steps taken by theExecutive through Parliament which exercises thepowers granted to it under the Constitution werenot his actions nor the acts of the respondents.
Learned Counsel for the respondents submittedthat on the basis of all these facts therespondents had merely published a fai andaccurate report of parliamentary proceedings thatresulted from such representations and thattherefore there was no contempt of Court. Learned
SCHewamanne v. Da Silva (VictorPereraM119
Attorney General who appeared before us as amicuscuriae too submitted that under the circumstancesin this case there was no contempt. The law ofcontempt applicable to criticism of or comments onCourts or Judges had no application in . this caseand all the authorities dealing – with scandalisingof a Court or a Judge were of no relevance..
There is a principle that a fair and accuratereport of proceedings in courts of justice is1protected. It is the same principle in regard to afair and accurate report of a proceedingin
Parliament.In both cases the, advantage to thepublic outweighs any disadvantage to individualsunless malice is proved. This principle was clearlyenumerated! in the case of Wason v. Walter (1). Itis of great consequence that the public should knowwhat takes place in a court as the proceedings arepublic and are under the control of the Judges. Thesame reasons apply to reports of proceedings inParliament which are under the control ofParliament.
jlS5 Mse a ■, .* vy Council case of Derem -v.Peiris(67)(at page 159) this question was
considered fully and stated as follows
"The wide general principle was stated byth£ir Lordships in Macintosh v. Dun (69) tobe.the "common convenience and welfare ofsociety" or "the general interest of society"and other statements to much the same effectare to be found in Stuart v. Bell (70) andin earlier cases, most of which will be foundcollected in Mr. Spencer Bower's valuable workon Actionable Defamation. In the case ofreports of judicial and parliamentary pro-ceedings the basis of the privilege is not thecircumstance that the proceedings reported arejudicial or parliamentary – viewed as isolatedfacts – but that in the public interest that
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all such proceedingsshould be fairly
reported. As regards reports of judicial pro-ceedings reference may be made to Rex v.Wright (supra)(17) where the basis of theprivilege is expressed to be “the general 1advantage to the country in liaving theseproceedings made public", and to Davison v .Duncan (22) where the phrase used is "thebalance of public benefit from publicity";while in Wason v, Walter (1) the privilegeaccorded to fair reports of Parliamentaryproceedings was put on the same basis, as theprivilege accorded to fair reports of judicialproceedings – the requirements of the publicinterest".
The Supreme Court of the Republic of Sri Lankais the highest Superior Court. Article 105(2) ofthe Constitution has given it the power to punishfor contempt of itself whether committed in Courtor elsewhere. Article 14(1)(a) declares that everyperson is entitled to the freedom of speech andexpression including publication and there could beno doubt that the freedom of the Press has beensecured. Article 15 (2) however, provides that theexercise and operation of this fundamental rightshall be subject to such restrictions as may beprescribed by law in relation to parliamentaryprivileges, contempt etc. It was conceded by allparties that no restrictions had been prescribed bylaw in relation to contempt of court and that interms of Artie]'* 15 the existing written law andunwritten law continued to be in force. On thatbasis the law of contempt in England and the law ofcontempt as were in force in Sri Lanka at the dateof the Constitution are applicable.Considering allthe authorities cited there is not a single casewhich justifies the conclusion that the fair andaccurate report of a parliamentary proceeding . such
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!
as the one we are considering can be regarded as acontempt of Court. At common law, a fair andaccurate report of judicial proceedings takingplace before a properly constituted tribunalsitting in open court is privileged. This privilegeextends to proceedings in parliament. It alsoextends to other public proceedings wherepublication is for the common convenience andwelfare of society, that is, in the publicinterest. According to Halsbury's Laws of England4th Edn. Vol.28, page 61, this privilege is notconfined to reports published in a newspaper or toreports published contemporaneously; every personhas the protection of this privilege if hepublishes the report merely to inform the public.The grounds of this common law privilege is thatthe public is entitled to be present at theproceedings unless prohibited by the Court, byParliament or by the body holding the proceedingsand therefore the public is entitled to be informedof what was taking place. There is thus an immunityattaching to the report or publication.
But the publication of comments or criticismof a Court or a Judge stand on a different footing.The law of contempt imposes a significantlimitation on the freedom of speech and expressonby prohibiting such publications as would prejudicea fair trial in a pendng case thereby interferingwith the administration of justice and also byfurther restricting comment on or criticism ofcourts or Judges where such publication scandalisesthe Courts or Judges.
According to our Constitution, sovereignty isin the People and the legislative power of thePeople is exercised by Parliament, the judicialpower of the People is exercised by Parliamentthrough Courts and tribunals created, establishedor recognised by the Constitution and the Executivepower of the People is exercised by a President
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elected by the People.' The concept of theserepublican principles of Representative Democracyis enshrined in the Constitution and referred to inthe preamble to the Constitution. In that contextit is of paramount and public interest that the• people are allowed to know and are correctlyinformed of what transpires in Parliament. Asstated in the case of Cook v. Alexander (23) thereis a conclusive presumption that what is said ordone in Parliament even in England, is of publicinterest. The Press of this country has a publicduty to bring relevant facts to light and the factthat Parliament is probing matters connected withthe judiciary with responsibility is a matter ofinterest to the people and cannot be regarded as acontempt of court or of the judiciary. Parliamentwas within its rights if it had in fact prohibitedthe publication of this fact, but the Courts cannotbe called upon to do what Parliament had not donedirectly or indirectly. Our Supreme Court has fromearliest times even where it had punished writersand publishers for contempt of Court, in instanceswhere there were actual criticism of the Judges orCourts calculated to bring a Court or a Judge intocontempt and lower its authority, observed aconsistent principle.Wood Renton J.in 1908 in thecase of Kandoluwe Sumangala v. Mapitigama-Dharmarakitta (71), referred to the law of contemptin these terms:-'
"It is extremely difficult to bring home tominds of some people and yet it is of vitalmoment that every one should know, that thelaw of contempt of Court does not exist forthe glorification of the Bench. It. exists -and exists solely – for the protection of ,thepublic".
In regard to the freedom of the Press,Soertsz J. in Vmerasamy v. Stewart (63) said this:-
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" No one desires to fetter unduly the freedomof the Press, least of all Courts of Law, forthe Press can be, and has often been apowerful ally in the administration ofjustice".
The importance of the freedom of the Press cannotbe ignored when under a Constitution such as ours,the People are supreme and have a right to changethe persons who exercise the sovereignty of thePeople in terms of Article 4.
1 have had the advantage of reading thejudgment of Wanasundera,J. He has considered allthe submissions made by the Counsel for thepetitioner and by Counsel for the respondents andby the Attorney General. He has exhaustivelyanalysed the decided cases cited before us in greatdetail and also referred to the views of textbookwriters. Practically all the cases, particularlythe Indian authorities, dealt with criticismresulting in undermining the dignity of Courts andthe course of justice. I have taken the view thatin this case there is complete absence of criticismof or comment on Courts or Judges by therespondents and with respect and with regret Ihave to disagree with the conclusion he has arrivedat on the basis of the authorities cited. I
I have' come to the conclusion that the-publication in this case of a news item reproducingthe text of a motion set down in the Order Paper ofParliament does not constitute a contempt of Courtas the public interest in this country demands thatthe proceedings in Parliament be known to thepublic and that the public must be made aware thatallegations, however serious made against even thehighest Court, are being inquired into with a duesense of responsibility.
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I accordingly order that the Rule on therespondents be discharged.
RANASINGHE, J.
I have had the opportunity of reading,in draft, the judgment of Wanasundera, J., and, asthe view I take,in regard to a principal defenceurged on behalf of the Respondents, is different, Ihave set down my reasons in this judgment.
On Monday March 7th, 1983 the "Ceylon DailyNews", which is an – English daily newspaper andwhich is said to have the largest circulation inthe Island, owned and published by the 2ndRespondent and edited by the 1st Respondent,published prominently in its front page, andcontinued on page 11, a news item relating to aresolution to be moved on the following day by theJustice Minister in Parliament, for the appointmentof a parliamentary select coramitee to probe certainrepresentations made by Mr.K.C.E.de Alwis – aformer Judge of the Court of Appeal and also amember of the Special Presidential Commission,whose continuance on the said Commission had beensuccessfully challenged before the Supreme Court byMr. Felix Dias Bandaranaike, who had himself beena Minister of Justice in a previous Government -against, inter alia, two of the three Supreme Courtjudges who had heard the said application Eaade bythe said Mr.Bandaranaike against the said Mr.deAlwis.
The said article contained the following
headlines
" Select committee probe ofMr. K.C.E.de Alwis' representationsFDB's pleadingsprepared in judge's chambers "
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The letters of the second headline were.larger and thicker than those of the first. A copyof the said news item, as it appeared on the frontpage and on page 11 of the said newspaper on7.3.83, is annexed, marked 'A', to the Petitioner'saffidavit filed in these proceedings.
The news item, in* its first five paragraphs,makes reference : to the resolution to be moved bythe Minister of Justice for the appointment of aselect committee toprobe Mr. de .Alwis*
representations: to three of the questions whichsuch select committeewillhavetoprobe.
Thereafter it proceeds to reproduce the entirety ofthe text of the said resolution. Paragraph (b) ofthe said resolution is said to be:whether there
were any circumstances which rendered it improperfor the two judges (who are named) to have agreedto hear and determine the application (S.C. Ref.No.l of 1982) filed by Mr. Felix Dias Bandaranaikeand whether the decision of either of them wasinfluenced by any improper considerations ; andparagraph (c) to be : whether any pleading filed byor on behalf of the petitioner the said FelixBandaranaike in the said proceedings were preparedin the chambers of the judge, (who is named) whoheard the said application, and, if so, thecircumstances in which it came to be so prepared.
The Petitioner, who is an attorney-at-law,practising in this Island, has complained to thisCourt: that the said news item, taken as a wholeand in its parts, seeks to cast doubt on theimpartiality and integrity of the judges of thiscourt, who heard the aforesaid application, andthus weaken public confidence in the administrationof justice: that the said publication scandalisesJudges of this Court and is calculated to lower theprestige of this Court : that the said publicationhas also the necessary tendency to interfere withthe due administration of justice :that the 1st
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and 2nd Respondents have thus committed a grave,contempt of this Court, and should be punished forthe said offence of contempt.
After hearing learned Queen's Counsel insupport of the Petitioner, this Court, issued aRule on both the 1st and 2nd Respondents. Annexedto the said Rule, and marked 'X* was a copy of thenews item.
It will be convenient at this stage to referto the provisions of several Articles in theConstitution promulgated in 1978. Article 105 (3)vests this Court with the power to punish forcontempt of itself, whether committed in the Courtitself or elsewhere. Article 168(1) provides forthe continuance in force of all laws ? written lawsand unwritten laws, which were in force immediatelybefore the commencement of the Constitution, exceptwhere provision to the contrary is expressly madein the Constitution itself.Article 14 (2) providesthat the exercise and operation of the fundamentalright declared and recognized by.Article 14 (1) (a)- viz : the freedom of – speech and expressionincluding publication shall be subject to suchrestrictions as may be prescribed by law, interalia, in relation to contempt of court. No suchrestrictions have, however,been yet prescribed bylaw. Article 16 (1) states that all existingwritten law and unwritten law shall be valid andoperative notwithstanding any inconsistency withthe preceding provision of the said Chapter, vizChapter 111 which deals with Fundamental Rights.The resulting position, then is that the lawrelating to contempt of court, which was in forceand in operation in this Island at the time theConstitution came into operation on the 7thSeptember, 1978, would continue to be operative eventhereafter.
The substantive law of contempt applicable in
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this Island is the English lav. That it is so was.accepted by all learned Counsel who appeared beforethis Court at this inquiry ; and it is also madequite clear by the judgments cited to us at the.hearing – vide : in re Cappers ,(59) , and also Inthe matter of Armand de Souza t (61 )L, In the matterOf a Rule an. H.A.J.Hulugalle , (62)| Weerasamy v.Stewart ■ (63); In re JayatilakA (72).
The right of a court of law to punishpersons for the commission of acts in contempt ofits authority has been firmly recognized andaccepted in many jurisdictions. Originating as anoffence against the King, who vas considered theultimate source of all judicial authority and thefountain-head of justice, this power has beenexercised by the Courts in England for severalcenturies and has been said to be as old as the lawitself. The power which so existed in the courts oflaw to punish summarily for. the offence of contemptfound categorical end authoritative expression asfar back as 1765 in an "undelivered judgment” ofMr .Justice Wilmot in the case of The Kingv. Alison, (37) which was however published only inthe year 1802, in the following terms :
"The power which the Courts in WestminsterHall have of vindicating their own authorityis coeval with their first _foundation andinstitution ; it is a necessary incident toevery Court of Justice whether of record ornot to fine and imprison for a contempt tothe Court, acted in the face of it. And theissuing of attachments by the Supreme Courtsof Justice in Westminster Hall, for contemptsout of Court, stands upon the same immemorialusage as supports the whole fabric of theCommon Lav ; it is as much the lex terras,and within the exception of Magna Carta asthe issuing of any other legal process
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t -. _.
whatsoever.I have examined very carefully tosee .if I could find out any vestiges ortraces of its introduction but can find none.It is as ancient as any part of the CommonLaw;there, is no. priority or posteriorityto ibe.discovered, about it and, therefore. itcannot be said to invade the Common Law, buttoactinanallianceandfriendly
conjunction with every other prevision whichthe wisdom of our ancestors has establishedfor the general good of society. And though Idonotmean tocompareand.contrast
attachments with trials by juries, yet truthcompels me to say that * the mode ofproceedings by attachment stands on the very,same foundation and basis as trial by juriesjdo – immemorial usage and practice"
Blackstone, who was a contemporary of Wilmot, J.has also given expression to a similar view when inhis Commentaries iv 286 he stated :
"The process of attachment for these and thelike contempts must necessarily be as ancientas the laws themselves.For laws,without acompetent authority to secure their-administration from disobedience and contemptwould be vain and nugatory. A power thereforein the.Supreme Courts of justice to suppressv^uch.contempts by an immediate attachment ofthe offender results from the. firstprinciples of judicial establishments andmust be an inseparable attendant upon everysuperior tribunal.".
It.was contended by learned Counsel for the 2ndrespondent that the opinion of Wilmot,J, has beensubjected to criticism by several judges andjurists,amongst which the article by Sir John Foxin the 24th and 25th Volumes (1905 and 1909
sc
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respectively) of the Law Quarterly Review stands,out pre-eminent,and that, therefore,it should nolonger be treated as laying down the law bn thissubject. Mr.Justice Wilmot's opinion has since beenreceived with approval in so many subsequent cases(vide: The Law. of Contempt of Court and Legislatureby Tex Chand and H.L. Sarin, 1949, 2nd edition atpage 12 for a list of such cases) that /'it must nowbe taken to have been practically determined thatthe summary process for committal_ for contemptwhether in or out of Court, existed; from theearliest times" – Oswald on Contempt Cosoittal andAttachment (3 edt) p 3. Whatever be its historicalbasis and however sound be its reasoning, it is nowtoo late for the call made by Sir John Fox in hisaforementioned article for the correction of, whathe submits is, the error in the opinion of Wilfflot, J.to be responded to. In the year 1963,. the HighCourt of Australia has, in the case of* Jamesvs, Robinson (73), after observing that Sir JohnFox had himself not only stated in the course ofthe said article that " /?. vs, Aloon has beenreferred to with approval in a line of decidedcases extending to the present day" (i.e. up to thetime of the said article in 1908 – 1909) but hadalso concluded his article by stating that "the lawas it stands is so firmly established thatParliament alone can effect an alteration, ifalteration be necessary", and that Sir WilliamHoldsworth, in his book A History of English Law,Vol.3 p.393 , has also expressed the view that R,vs. Almon (supra) "was accepted as correct and itforms the basis of the modem law on this subject",concluded that it would "be the sheerest futilityto seek to ascertain whether the present law restsupon a sound historical basis or not…..", andthat "in the half century which has ‘ followed thepublication of these articles the. principle (laiddown by Wilmot.J.) has, if possible, become morefirmly established.
130Sri Lanka Law Reports[1983] 1 Sri LR,
r—■—
__The jurisdiction which the courts have to
deal with the contempt of its authority wasreferred to by. Lord Russell C,J. in the case of R.Vs. Gray (40) at p 40 in this way:
"This is not a new-fangled jurisdiction; itis a jurisdiction as old as the coimnon lawitself, of which it formis part. It is ajurisdiction the history the purpose andextent of which are.admirably treated in theopinion of Wilmot C.J., then Wilmbt J., inhis Opinions and Judgments.lt is ajurisdiction, however, to be exercised withscrupulous care, to be exercised only whenthe case is . dear and beyond reasonabledoubt……."
In the year 1970 in the case of. MorrisVs. The Crown Office (9), Lord Denning M.R. atpage 1081 observed, ;.
"The course of justice must not be deflectedor interfered with. Those who strike at itstrike at the very foundations of oursociety";
and at page 1087 Salmon L.J. said :
"The sole purpose of proceedings forcontempt is to give our courts the powereffectively to protect the rights of thepublic by ensuring that the administrationof justice shall not be obstructed orprevented."
In the more recent case of . A.G. Vs. TimesNewspapers Ltd., (12), which evoked considerablepublic interest in England and ultimately reachedthe European Court of Human Rights, in the House
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of Lords, Lord Reid stated at page 303 that. :
" The law on this subject fite. contempt ofCourt) is and must be founded entirely onpublic policy. It is not there to protect theprivate rights of parties to a litigation orprosecution:It is there to prevent
interference with the administration ofjustice and it should, in my judgment, belimited to what is reasonably necessary forthat purpose. Public policy ' generallyrequires a balancing of interests which mayconflict. Freedom of speech should not belimited to any greater extent than isnecessary but it cannot be allowed when therewould be real prejudice to the administrationof justice";
and at page 310 Lord Morris stated :
"the phrase contempt of court is one
which is compendious to include not onlydisobedience to orders of court but alsocertain types of behaviour or varieties ofpublications in reference to proceedingsbefore courts of law which overstep thebounds which liberty permits. In an orderedcommunity courts are established for thepacific settlement of disputes and for themaintenance of law and order^ In the generalinterest of the community it is imperativethat the authority of the courts should notbe imperilled and that recourse to themshould hot be subject to unjustifiableinterference. When such unjustifiable'interference is .suppressed it is not becausethose charged with the responsibility ofadministering justice are concerned for theirown dignity :it is because the very
structure of ordered life is at risk if therecognized courts of the land are so flouted
[1983] 1 Sri LR.
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. thattheirauthority vanes and; are
supplanted. But as the purpose and existenceof courts of lav is to preserve freedomvithin the lav for all veil disposed membersof the- community,it is manifest that thecqurts must never impose any limitations uponfree, speech or free discussion orfree
criticism beyond those vhich are absolutelynecessary. When therefore a court has toconsider the propriety of some conduct orspeech or vriting the decision,will often/ de- .pend whether one aspect of the public interest^definitely outweighs another aspect of thepublic interest. Certain aspects of thepublic interest will be relevant in decidingand assessing whether there has been contemptof court"
and at page 316, Lord Diplock observed :
Contempt of Court' is a generic termdescriptive of conduct in relation toparticular proceedings in a court of lavvhich tends to undermine that system or toinhibit citizens from availing themselves ofit for the settlement of disputes. Contemptof Court may thus take many forms ";
and further at page 318 :
"Contempt of Court is punishable because itundermines the confidence, of not only theparties to a particular litigation but alsoof the. public as potential suitors in thedue administration of justice- by theestablished courts of lav";
and at page 323, Lord Simon stated :
"The lav of Contempt of Court is a body ofrules .which exists to safeguard another,
Hewamaane v. De Silva {Ranasinghe, J.)
SC
i
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quite different institution of civilisedsociety. It is the means by which the lawvindicates the public interest in dueadministration of justice – that is in theresolution of disputes, not by force or byprivate or public influence, but byindependent adjudication in courts pf lawaccording to an objective code; "
and at page 329, Lord Cross stated:
"'Contempt of Court’ means an interferencewith the administration of justice and it isUnfortunate that the offence should continueto be known by a name which suggecrs to themodeln mind that its essence is a supposedaffront to the dignity of the court..Yetthe due administration of justice issomething which all citizens whether on theleft or the right or in the centre, should beanxious to safeguard, When the allegedcontempt consists in giving uttartcce eitherpublicly or privately rn opinions with regardto or connected with Iv^al problems, whethercivil or criminal,, the. law of contemptconstitutes an interfe* er.ee with freedom ofspeech, and I agree with my noble and learnedfriend that we should he careful to see thatthe rules as to ’Contempt' do not inhibitfreedom of speech more than is reasonablynecessary to ensure that the administrationof justice is net .interfered with.”
Contempt of Court could be constituted., byconduct of varying kinds. One of . the . earliestelassif icat.icc 3 of contempt has been by LordHardwicke .in the year 1742, who in the case of Readand Huggonson (74), stated*
"There are three different sorts of contempt.One kind of eont^pt is, scandalising- the
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[1983] 1 Sri LR.
court itself. There may be likewise a con-tempt of this court, in abusing parties whoare concerned in cases here. There may bealso a contempt of this court in prejudicingmankind against persons before the case isheard."
. Tek Chand and H.L.Sarin in the book entitled "TheLaw of Contempt of Court and of Legislature" (2ndedt) (Supra) at page 249 enunciate the principlesunderlying the law of contempt qua presspublications under the following heads :
"lt is a Contempt of Court to scandalisethe Court or offend against the dignity of aJudge by attributing to him dishonesty orimpropriety or incompetence, regardless ofthe fact whether the case with reference towhich the offending remarks were made ispending in the Court or has been decided.
2 ….
3
General criticism of the conduct of a Judgenet calculated to obstruct or Interfere VXththe administration of justice, or the admi-nistration of the law in any particularcase, even though libellous, does not con-stitute a contempt of court"
That the contempt alleged to have been committedby the respondents in this case falls into thecategory known as "Scandalizing the Court or Judge"is clear ; and there is no dispute in regard toSuch classification.
Although Lord Morris did, in the case ofMcLeod Vs. St, Aubyn (41), decided at the end ofthe nineteenth century, express the view that thisclass of contempt – scandalizing the Court or Judge- had become obsolete in England, yet his view
SCHewamanne v. Do Silva (Ranasinghe, J.)135
.i» i ■—■■ ■ — ——h— ■■■^ ■ – ■ ■ ■ ■*■■" ■■ —
was shown to be incorrect by the case of R,Vs* Gray (40), decided by Lord Russell, C.J. inthe very next year and by several subsequentcases : R. Vs, New Statesman ex p. D.P.P. ’ (75),Ambard . Ks. A.G, for Trinidad' and Tobago (57),R. vs. Metropolitan Police ex p Bleckhur® &(53), Badry vs, D,P,P. of Mauritius (763= 1Li~this branch of the lav of contempt is in force inthis Island does not admit of any doubt in view ofthe local decisions in the cases of :In re
Armand de Souza . (supra). In re H,A,J.Hulugalle(62), In re Jayatilaka (72).
A lucid authoritative description of theclass of contempt known as "scandalizing a Courtor a Judge" is to be found in the judgment ofLord Russell C.J. in R. vs. Gray(40)at page 62 whenhe said•
"Any act done or writing published calculatedto bring a court or a Judge of the court intocontempt, or to lower his authority,is aContempt of Court. That is one class ofContempt, Further, any act done or writingpublished calculated to obstruct or interferewith the due course of justice or the lawfulprocess of the courts is a Contempt of Court.The former class belongs to the categorywhich Lord Hardvike L.C. characterised as"scandalising a court or Judge . ( In re Readand Huggonson ( 74)).That description of thatclass of contempt is to be taken subject toone and an important qualification.Judges andcourts are alike open to criticism and ifreasonable argument or expostulation isoffered against any judicial act as – contraryto law or public good, no court could orwould treat that as contempt of court. Thelaw ought not to be astute is such cases asto criticise adversely what . under such
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circumstances,and with such an object ispublished but it; is to be remembered that ■in this matter the liberty of the press is hogreater and ho less than the, liberty of everysubject of the. Queen,"
The qualification stressed by .Lord Russellwas re-echoed and emphasised three decades later- byLord Atkin in a. famous .passage in the advicegiyen by the Board in the case, of Ampard-ys.. A^G,for Trinidad and Tobago*: .(57.^atrp7Q9i ,: i
"But whether -the authority and position of anindividual or the due,: administration ofjustice is concerned, no wrong is . committedby any member of.the public who. exercises theordinary right of criticising in good faithin private or public the public act done inthe seat of justice. The path of criticism is- a ■ public why ^ •: the' wrong.* headed '■ are • permittedto err therein i provided.; that ,the-members ofthe public .abstain:'; from imputing-'-impropermotives to’- those taking part.;. ;ih theadministration”of justice, and. are genuinelyexercising a: right1 ofi briticism and notacting in malice or attempting to impair theadministration of justice* thfey are immune.Justice is not.cloistered^.virtue^:she must
be allowed to- suffer? the • >scrutiny andrespectful even though; outspokenbCoinments ofordinary men."
That any member of the public is ,entitled tocriticise, even strongly, judicial decisions orjudicial .work ,done in a Court of Justice once acase is over has . been, readily ; .conceded- by theCourts, and is.a principle which is now firmlyestablished. Laid down almost eighty years ago byLord Morris in McLeod's case (supra), reiteratedby Lord Atkin in Ambard's case (supra) and most
SCHewamanne v. De Silva (Rabasinghe, J.)137
Pm. — ….-.1;»…..■■ —■■■■''■'
eloquently upheld by Lord Penning in the case of R.vs. Commissioner of the Metropolis ex p-Blackburn(supra)) at p.320. Ibis principle has been placedin its proper setting by the House of Lordsrecently in the much publicised Times case (supra),where Lord' Simon stated at page 327 and 328 that,once the proceedings are concluded,* the remit is. Withdrawn and the balance of public interest shifts:chat- the – litigation having been concluded thepublic interest in freedom of discussion becomesparamount subject to the restrictions that . theCourt must not be scandalised,, and any pendinglitigation shotsld not be interfered with. Thisright has also been recognised in this Island inthe cases of■ :Tn re Armand de Souza (supra),and In.re E.A.J, Hulugalle (supra).The High Court ofAustralia too has accepted this principle :The
King vs. Fletcher , ex p. Kisch ,(77).That faircriticism is not contempt and that thg judiciary isnot immune from such fair criticism, has beenrecognised in India too. videIn re
Mvlgaokar(7Q). The Indian decision, in the case ofIn re Subrananian (79) , also laid down that where apublication amounts to contempt of court it is nodefence that it is only a quotation from anothersource. That, before a decision whether any actdoes amount to contempt of court or not is arrivedat, it is necessary to consider ali the surroundingcircumstances is a principle elucidated in the caseof Sambu Nath Jha vs.. Kadar' Prasad Sinha (80).
The principle underlying punishment .for-contempt of court, is that it is- inflicted' for’attacks-on Judges not with a view to protecting the'Individual. Judge or the court as a whole 'from a^repetition of such attacks, but in order.- tomaintain the authority of the judge- or courts and'prevent a loss of public confidence and a~ – risk Ofany interference with the . administration ofjustice.Any. libel on a judge, which' has– noreference to his judicial functions, or any
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personal abuse or slanderous criticism of a judgeas an individual and not in his judicial capacitydoes not amount to contempt of court – In re BahamaIslands (81).
In considering the said article "A" (or "X")the court has to consider how it will be understoodby those who read it. In doing so, the court has toput itself in the place of the average reader ofthe newspaper,which carries the said article, anddecide,as best as it could, what impression itwould have created in the minds of such reader. Indealing with this matter, Wood Renton,C.J. observedat page 38, in the case of In re Armand de Souza(supra), which said approach was approved of byAbrahams,C.J. at page 303 in the .case of – In reHeA„J„ Hultigalle (62), that such reader
” would read the article as such articles areread every day by ordinary people, who haveno time, even where they have the capacity tocarry1 out such a process of balancing, andwho would he guided in the long run by thegeneral impression which the article left intheir minds.1’
A consideration of the impunged articlemarked ,,A,, by the Petitioner and "X" by theRespondents shows that :the first paragraph setsout, in the form of a question, the contents ofclause (c) of i:ne resolution which the Minister ofJustice would move and the full text of which saidresolution is set out later at paragraph seventhereof ; the second paragraph states that what isso set out earlier in the first paragraph is one ofthe questions which a parliamentary selectcommittee will be called upon to probe under theterms of a resolution to be moved on the following. day by the Justice Minister ; the third paragraph
SCHewamanne v. De Silva (Ranasingha, J )139
states that the Justice Minister will move for theappointment of a select committee to probe therepresentations – without setting out expresslywhat the representations are – made by Mr.K.C.E. deAlwis; the fourth, fifth and sixth paragraphshighlight clauses (a) and (b) of the resolutionwhich is set out in full later at paragraph seven ;the seventh paragraph then sets out in full-consisting of the preamble and five clausesnumbered (a) to (e) – the text of the saidresolution which the Justice Minister, it isreported, would move on the following day. The saidclause (b) of paragraph seven is : "whether therewas any circumstance which rendered it improper for(the two judges are named) to have agreed to hearand determine the application (S.C. Ref. No.l of1982) filed by Mr. Felix R.B. Bandaranaike andwhether the decision of either of them wasinfluenced by any improper consideration"; and thesaid clause (e) of the said seventh paragraph is:"whether any pleading filed by or on behalf ofthe petitioner the said Felix R.D.Bandaranaike inthe said proceedings were prepared in the chambersof …… (the judge is named) …… one of the
judges who heard the said application- and if so the-circumstances in which it came to be so prepared."
In regard to the two headlines which the saidarticle carries, learned Queen's Counsel for thePetitioner stated that, if the body of the said -article "A" (or "X") does not constitute a contemptof court, then the headlines by themselves would,not make it so, and that, if the text of thearticle itself amounts to contempt of court, thenthe form and contents of the headlines wouldoperate to aggravate such contempt.
In almost every one of the cases cited to usat the hearing, what was alleged to constitute thecontempt was a direct attack – either oral orwritten by the very person who was hieself brought
140
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[19Si}l Sri LR.
before court to answer to the charge of contempt ofcourt*. In this case, however,, neither of theRespondents istheperson who ishimself
responsible for originating. – either orally or inwriting – that which is charged . as amounting tocontempt, Asset out earlier, the Indian case of Inre.Subramanian (supra) denies a person, who merelyrepeats or reproduces anything uttered or writtenby another which amounts to contempt of court, thedefence that he himself has ’ ’merely repeated . ofreproduced that which another uttered .or wrote.Although impugning the impartiality of a judge andthe imputation of improper motives to a judge inthe discharge of his judicial function had beenheld, to amount to contempt – as in Ambard’s case(57) at p 335, in Rc v . N&w Statesman (Editor exparte D,P,P,[(44) and in R, vs. Colsey (82), yetthe view has been expressed that such an allegationmay. not necessarily, be – a contempt .of court.Griffithj.., delivering the judgment of the HighCourt of Australia in the case of The King, vs,Nicbolls (56),observed :
. 5„a,nd I am not prepared tp accede to the.proposition. that. ,an imputation ,pf ^.want of.impartiality, -to '^a judge / .necessarily, acontempt of court. On the contrary I think: that,. if any. jtfdgaVdf this Jcoiir t ■ or of , anyother x&qft were to make-a-public utterance .ofsuch a character as-to be likely to impair theconfidence of the public,: dr^of the suitors pipany class'of suitors ihi3the'>',aimpartiality ofthe court in any matter'to^be brought beforeit, any public comment on such- an utterence.If it .be a. fair . commentir would, 'so far frombeing a contempt of-court,’be for the publicbenefit, and would be .entitled to similarprotection to that'Which comment upon mattersof public.interest is entitled under the lawof libel."
SC ‘ ,Hewamanne v. Da Silva (Ranasinghe± 1)141
Borrie and Lowe : on The Lav of Contempt at p 162 ,Having stated that the decision in R. vs. Colsey(82) has been much criticised and may be open toquestion, refers to a criticism of it by ProfessorGoodhart.
I have considered the principles relating tothe offence of 'scandalising of a judge or court'at length because they would also be very helpfulin the consideration of the- other defences urged o^behalf of the Respondents. Although, on • aconsideration of the principles relevant to thishead of contempt of court, as set out above, itwould seem difficult for a publisher to escapeliability in respect of the contents of clauses tb)and (c) of paragraph seven of the said article,yet, several arguments to the contrary, worthy ofserious consideration, have been advanced. It is,however, unnecessary for me to express a definitefinding upon this question in view Of the opinion Ihave formed, as will be set out later in thisjudgment, in regard'to the defence put forward bythe Respondents based upon the plea of privilege.That being so it would also be necessary for me toconsider the further contention put ,forward onbehalf of the Respondents that mens rea is also anecessary element in the offence of contempt ofcourt. Even so, in view of the fact that there hasbeen considerable discussion of this matter, Iwould merely give an indication of what seems to-bethe position, in law, in regard to thisu matter.Having regard to the various decisions – from theEnglish, Indian, Australian and also our own courts- and also the discussions of the several learnedauthors of text books, it seems to me : that themental element requited to be established is odrelyan intention to publish the impugned, objectionablematter ; that an intention, to bring the judge : orthe court into hatred, ridicule, contempt andinterfere with the due administration of justice onthe part 'of the offender >is not a requiredingredient of the offence of contempt of court.
J42Sri Lanka Law Reports[1983] 1 Sri LR.
The principle defence put forward on behalfoi the Respondents – apart from the contention thatthe contents of the impugned article "X" (or "A")cannot be considered as constituting an offence ofcontempt – is that the said articles which is onlya publication of the contents of an Order Paper ofParliament (a certified copy of which has beenmarked R 3), is a fair and true report ofproceedings in Parliament, and is, thereforeprivileged.
It was submitted, on behalf of theRespondents, at the hearing before this court thatthe question which arises for consideration inthese proceedings – viz : whether a fair andaccurate report of Parliamentary proceedingspublished in a newspaper without any malice andwith the sole object of furnishing information tothe public is protected by a plea of a qualifiedprivilege, even though such report containsmaterial which amounts to contempt of court – isres integra and comes up for consideration by thiscourt for the first time. It is one that is said tobe not covered by any previous judicial authority -either in, England or any other country where theparliamentary system of goverment prevails.
The first matter, which has to be decided inthis connection', is whether an Order Paper ofParliamen^:omes within the term "parliamentaryP^egdtifipr. A. consideration of Standing Ordersnos^20| £3, 46, 47, of the Standing Orders of theParfffinent of the Democratic Socialist Republic ofSri Lanka prepared and adopted in terms of Article74 of the 1978 Constitution makes it clear that theOrder Paper constitutes, as it were, the agenda fora meeting of Parliament. It contains the Orders forthe Day and the motions and questions, notices of;mi.ch have been duly given and which have not been■filed out by the Speaker and which are to come forcaiwU'jifation at such meeting. Its contents
SCHawamanne v. De Silva (Ranasinghe, J.)J4S
constitute "Public Business". Ordinarily no motion,resolution or bill could be moved, without ithaving been first placed on the Order Paper forthat particular day. Nor could a question be askedif it had not been previously placed in the OrderPaper for the day. The moving of motions ?.ndresolutions and the asking of questions on thefloor of the House when the House is in session, isinitiated by a Member by having notices of suchacts included previously in the Order Paper forthat particular day. Inclusion in the Order Paperis but the beginning of the process which wouldentitle the member to ask such ' questions or movesuch resolutions or motions at a later stage on aspecified date on the floor of the House when theHouse is in session. It is but the first step in atransaction which would be concluded subsequently.
Erskine May's Parliamentary Practice (17 edt)discusses, at page 62, the meaning of the term"proceedings in Parliament." The primary meaninggiven to this term, as a technical parliamentaryterm, is "some formal action, usually a decision,taken by the House in its collective capacity." Ithas been extended "to the forms of business inwhich the House takes action and the whole process,the principal part of which is debate, by which itreaches a decision". It is further stated that "anindividual Member takes part in a proceedingusually by speech, but also by various recognisedkinds of formal action, such as voting, givingnotice of a motion, etc., or presenting a petitionor a report from a Committee, most of such actionsbeing time-saving substitutes for speaking. At page62 is also a reference to the Report of the SelectCommittee on the Official Secrets Act in session1938-39 which states that the said term(proceedings in Parliament) covers "both the askingof a question and the giving of written notice ofsuch question, and included everything said or doneby a Member in the exercise of his functions as a
144Sri Lanka Law Reports [1983] 1 Sri LR.
member in a committee of either House as well aseverything said or-done in either House in thetransaction of Parliamentary business’-. The’judgment of the American cburt referred to byErskine May, also at page 62, shows that "speech"was not confined to- the mere "uttering of a speechor haranguing in debate" but: was extended to "everyother act resulting from the nature and in theexecution of the office."
Halsbury : Laws of England. (4 edt ) at. paragraph1486 states : "An exact and complete definition of'proceedings in Parliament’ has never been given bythe courts of law or by either House. In;its narrowsense the expression is used in both Houses todenote the formal transaction'of business in' theHouse or in Committees. It covers both the -askingof a question, and includes everything said or doneby a member in the exercise of his functions as amember in a committee of either House, as well aseverything said or done in either House in thetransaction of parliamentary business. ” Sec; 3 ofthe Parliament (Powers and Privileges) Act No.21 of1953 referred to the freedom "of speech, debate midproceedings". The term "proceeding" there wouldseem to cover spheres of activity not covered by"speech" and "debate". ~
The term "proceedings in Parliament" shouldnot be confined to utterances made on the floor ofthe House ,but should be extended 'to include allthat is said and done within the Hpuse by a Memberin the exercise of his essential^ functions as aMember of the House. Viewed from this standpoint,it is clear that R3, which is the Order Paper forthe sittings of Parliament on 8.3.83, is covered bythe term "proceedings in Parliament".
That a fair and accurate report of anyproceedings in Parliament published without malice
SC '
hewamanne v. Ds Silva (Ranasinghe, J.)
145
in a newspaper, is, under the common law,privileged is a principle of law which is nowclearly and firmly established – vide Gately :Libel and Slander (8 edt) para. 635. The questionwhether-a faithful report in a newspaper of adebate in either House of Parliament which containsmatter defamatory of an individual, as having beenspoken in the course of a debate on the floor ofthe house, is actionable at the instance .of such anindividual came up for consideration in England forthe first time in the year 2868 in the case ofNason vs. Walter (i) and Coekburn.C.J,, deliveringthe judgment of the Court of Queen’s Bench, heldthat it is not so actionable.
As the aforementioned case Nason vs. Walter
is the case in which this principle was laiddown for the first time it would be -helpful toconsider it in some depth in order to' understandthe basis for the formulation of that principle. Apetition was presented to the House of Lordscharging a high judicial officer', who had, after avery successful career at the Bar, been recentlyappointed, with having, several years prior to suchappointment made a false statement in order todeceive a committee of the House of Commons, and’praying for ah inquiry and the removal of theofficer. At a debate which ensued in the House ofLords the charges were refuted. The newspaper,Times, thereupon, published a faithful report of theproceedings which contained certain mattersdisparaging .of the person, who had presented . thepetition spoken in the course of the debate. Thepetitioner then instituted an action. of libelfounded upon the said newspaper report. Havingconsidered several earlier cases which had beencited. Cockburn#C.j, took the view that, as . thosedecided cases did not provide the authority uponwhich to proceed, recourse would’ have to be had toprinciple in order to arrive at a decision • of thequestion so before .the court. In the quest -for
146Sri Lanka Law Reports[1983] 1 Sri LIL
principle the Chief Justice accepted 'as veil,established that faithful and fair reports of theproceedings of courts of justice, though thecharacter of individuals may incidently suffer, areprivileged, and that for the publication of suchreports the publishers are neither criminally norcivilly responsible'. The principle upon which suchpublications are privileged was said to be that"the advantage of publicity to the community atlarge outweighs any private injury resulting fromthe publication." Thereafter, having considered theprinciples upon which privilege so attaches topublications of court proceedings, it was decidedthat those principles should be extended to applyalso to reports of proceedings in parliament, andthat, as the analogy between the cases of reportsof proceedings of these two . institutions beingcomplete, ail the limitations placed on the one toprevent injustice to individuals must necessarilyattach to the other. The argument, that publicationof parliamentary proceedings is illegal as being incontravention of the standing orders of both Housesof Parliament, was disposed of in this way :that
practically speaking it is idle to say that thepublication of parliamentary proceedings isprohibited by parliament : that the standing orderswhich prohibit such publications are obviouslymaintained only to give each House the control overthe publication of its proceedings, and the powerof preventing or correcting any abuse of thefacility afforded ; that, independently of theorders of the Houses, there is nothing unlawful inpublishing reports of parliamentary proceedings ;that, practically, such publication is sanctionedby parliament ; that it is essential to the workingof the parliamentary system and to the welfare ofthe nation ; that any Argument founded on itsalleged illegality must therefore entirely fail.The judgment ends by concluding that suchpublications must be treated as being in everyrespect lawful, and that, where it is done honestly
SC ..Howamanne v. De Silva (Ranasihghe. J.).147
_and faithfully, the publisher is free from legalresponsibility, even though the character ofindividuals may incidently be injuriously affected.
This decision had thereafter been accepted, assettling the legal principle upon this subject, forveil over a century. It has been cited withapproval in the Queen's Bench Division in the caseof ,: Webb vs. Times Publishing Co. Ltd. ,(36) andin the Court of Appeal recently, in the year 1973,by Lord Denning in the case of Cook vs.Alexander,(23)j and by the Privy Council in 1948 inthe case of M.G. Perera vs. A.V. Peiris,(67) whichwas an appeal from the Supreme Court of thisIsland.
It was contended on behalf of thePetitioner : that, although such plea of privilegecovers claims for libel by individuals who may havebeen defaced by such publications yet, such plea isnot available where such publications containblasphemous or seditious matter ; that just asblasphemous and seditious matter is not protected,matter that amounts to contempt of court is alsonot protected. This contention is founded upon whatappears in paragraph 396 of Catley: Libel andSlander(supra), under the heading "Limits ofPrivilege", wherein the author states : "It isobvious that as the (cossnon law) privilege isfounded upon grounds of public policy, and ofbenefit and advantage to the community, it does notextend to protecting any report; however fair andaccuratej which is blasphemous, seditious- orimmoral, or prohibited by statute or by any rule ororder having statutory force, or by order of thecourt or a judge prohibiting a report of theproceedings in any case where the publication ofsuch report would interfere with the course ofjustice". In this statement no express referencehas been made to contempt of court. That whichwould amount to contempt of court is hot spe-
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cifically mentioned as also a matter . which would■ preclude the claim of privilege. Nor is contempt ofcourt a matter that would be brought under any oneof the heads expressly mentioned in this paragraph.Based upon this statements it wa3 strongly conten-ded that if blasphemous, seditious. ahd; immoralmatter could exclude privilege, why'' not:'contempt•of court?
The authority relied on for the proposition so.put forward – in so far as blasphemous, seditiousand immoral matters are concerned, – is the'case of.Steele -vs, Brannan (83) which followed an earlierdecision in the case of R-.' vs. Mary Gartile(8A). Ona careful perusal'of' the . judgment in Steelesscase which founds Itself upon the earlier decisionin Carlile's case (supra) and a. passage fromSfcarkie on-Slander and– Libel-, 3rdedtat page 215,it seemS to me-that -neither the judgment of. Bovill,CoJ. or for that'matter neither*- of . the judgments,pronounced by the two1 judges; Keating, <1. and- -Garvin,3-i could -be said -to justify'- the formulation'' 6fsuch a general principle aS' is;sbtight: to ^ be'^reliedupon on behalf of the-7 Petitioner? ;The: fSc ts' :>aiidcircumstances upon which-■ the– decision* ih Steel*s.case (supra) was based are“ r theappellant Steele,kept in his Shop for: sale, pamphlets which‘ Wereconsidered obscene;5this pamphlet was a/ substan-tially correct^ report^df the trihl of 'one G;M£ori Hinindictment'for a-misdemeanour ih sellings -certainobscene work called– ^the : "Confessional Unmasked";the-contents of' that- bobk were* Set :but in-; fiill in'this; pamphlet, although'^-at the-.trial., itv waS takenas read and only passages*'in it -were referred td;on an order made by-^a Magistrate the pamphlets:which'were for sale in Steele's *Shop were seized,and Steele was asked to show cause why they shouldnot be destroyed-'; upon-the Magistrate making anorder for the destruction *of-the said pamphlet onthe ground that it was obscene, Steele appealedagainst the said Order to the Court of CommonPleas. One of the defences raised was that the said
sc .
Hewamannev. De Silva (Ranasinghe, J.)
149
publication was privileged as a fair report of pro-ceedings (the trial ofG.M. referred to earlier) ina court of competent jurisdiction. Bovill , C.J,,having referred to the passage from Starkie OnSlander and Libel; referred to earlier, and.also tothe judgment of Bayley, J., in Carlile's case(supra)'.concluded that ;
"It is clear that in general the publicationof fair reports of proceedings in . Courts ofjustice, like free,, discussion of – matters ofpublic' importance, – being considered .for thepublic benefit', – is . privileged; but. – it • ,:isequally clear that discussion Offensive topublic decency and of a depraving tendencyare not privileged."
– Keating?J„' in the course of his judgment-observed':
"The freedom of the press with relation toproceedings of courts of justice is,- doubt-less of the highest importance, and the lawdoes its utmost to protect such freedom,'butthe law would be self-contradictory if itmade the publication of -an indecent work anindictable offence and yet sanctioned“therepublication Of such a work under cover Ofits being part of the proceedings in a courtof justice."
Grove,J. expressed himself thus
"If it were permissible tO'publish the report-of a trial, in which the questionWaswhether certain matter was 'obscene' -arid'-r-fhepublication of it a misdemeanour, and toproduce the whole of such disgusting matterunder the cover of -such report, the rule• would be that 'the person publishing an ob-
150Sri Lanka Law'Reports[1983] 1 Sri LfL
scene work., would only have to be brought be-fore a court of justice for such pub-lication, in order to entitlehim to
republish the same matter with perfectimpunity. His trial would frustrate the verypurpose which it had in view, viz: theputting of a stop to the publication of suchmatter. This consideration appears to me toreduce the appellant's contention to anabsurdity."
A careful consideration of the facts andcircumstances in Steel's case(supra),andthe
judgment delivered in that case, it is clear thatthe claim of privilege just could not have beenaccepted in such a situation as arose in that case.Had such a claim been upheld, not only would thelaw have been rendered self contradictory, but thecourt would also have been stultifying itself ;for, whilst it, on the one hand, took steps toprevent the publication of an article, it would, onthe other, have given its blessings to thepublication of the very matter so impugned. Thedecision in Steele's case (supra) may have beenapplicable if a newspaper published what learnedCounsel in the case of Vidyasagars vs. TheQueen,(66) stated to court, even though such reportwas fair and accurate and the publication bona"fide. The decision in Steele’s case (supra) doesnot lend itself to support a proposition that thereare proceedings, in Parliament, which though they. constitute acts and deeds of Members themselvescannot, nevertheless, be reported by a newspaperhowever fair and accurate such report be, and eventhough such publication has not been expresslyprohibited by the House.
The case of Surendra Mohanty Vs, NabakrishaaChoudhury and others (24) was also cited on behalfof the Petitioners. In that case a newspaperpublished a speech, made in the State Legislature
sc
Hewamanne v. De Silva (Ranasinghe, J.)
151
J>y a Member of that Legislature, which amounted tocontempt of the High Court. Upon the Memberconcerned, and the editor, the printer and the pub-lisher of the newspaper being asked to show causewhy they should not be committed for contempt, theeditor, the printer and the publisher tendered anunqualified apology. The Rule issued against theMember was discharged on the ground that the HighCourt had no jurisdiction to take action against aMember of the Legislature for his speech in theLegislature, even if it amounts to contempt. Thedecision in that case, in so far- as it affected thepublishers, is of little or no assistance in thiscase where the Respondents have denied liabilityand a consideration of the relevant principles oflaw has become necessary.
Great reliance was also placed on behalf ofthe Petitioner, in support on this contention, upona statement made by Gatley (Supra) in the course offootnote uo. 28 appearing at page 596, wherein theauthor submits that "there can be no privilege fora report the publication of which is contempt ofcourt", and then proceeds to state that" this wasconceded in Lucas and Son vs. O’Brien (31), thoughan exception was said to be possible." Although thelaw report, in which the said judgment is reported,itself is not available, photostat copies of ithave, since judgment was reserved in this case, .been submitted to us by learned Queen's Counselappearing for the Petitioner. A perusal of the saidcopy shows that : O'Brien who had been a member ofa political League in New Zealand had in 1969resigned from that League and founded anotherpolitical party ; on 21st November 1972 the Leagueinstituted legal proceedings against O'Brien andseveral others alleging that assets belonging tothe League had been transferred to the new party inorder to assist O'Brien in the 1972 New Zealandgeneral election ; On 22.11.72 Lucas and Sqns(Nelson Maii) Ltd., published an article in its
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newspaper which was in effect a repetition of thestatement of claim filed in Court against O’Brien ;O'Brien then commenced an acticn against thenewspaper and the League for damages on the basisthat the said article was defamatory ; bothdefendants raised, inter alia, the defence of qua-lified privilege, at common law, on the basis thatthey had a moral or social duty to communicate thecontents of the claim made against O'Brien to thegeneral public, and that the article was a fair andaccurate report of proceedings of Court ; these twodefences were, on the application of the plaintiff,O'Brien, struck out by the trial judge ; thedefendants thereupon appealed to the Court ofAppeal. In appeal the Court allowed the defendantsto put forward the defence of qualified privilegebased on a social or moral duty to communicate. Itwas in discussing this plea, that the appellatecourt considered the trial judge's reference to thepossibility that the publication of the contents ofthe statement of claim filed by the League againstO'Brien amounted to a contempt of court ; andhaving observed that "It would be surprising if
statements that might amount to contemptcould
at the same time be privileged for reasons ofpublic policy in an action for defamation", theappellate court proceeded to observe that : thetrial judge, however, did not in. fact go so far asto hold that the publication of the said statementof claim actually amounted to a contempt of court :that, before it (the appellate court), learnedCounsel did concede that, if such publication hadin fact amounted to contempt, then such publicationcould not be the subject of qualified privilege onthe basis of a moral and social duty. It is hereimportant to note that the'statement, that anythingwhich amounts to contempt of court would not becovered by privilege, was not a conclusion arrivedat by court and which formed the basis of thecourt's decision, but that it represents only an.admission made by Counsel on a question of law.
sc
„ Hewamanne v. De Silva IRanasinghe, J.)153
What is even more important to note is that theplea of qualified privilege which was accepted asbeing not available is a plea of qualified pri-vilege put forward on the basis of "3 moral orsocial duty", and that it makes no reference to aplea put forward on the basis of a publicationbeing a fair and accurate report of parliamentaryproceedings made without malice. i~ any event thecourt further observed that "it is possible that asituation could arise in which it would ba ne-cessary for the court to balance the ordinaryinterest of a litigant in a . fair trial againstsome other consideration of general public interestand to decide where the public interest lay". Thisevidently is the observation . which made Gatleystate, as set out earlier? that "an exception wessaid to be possible".
There is, however, an expression of opinionby a judge of the Court of Appeal in Englano thatthe protection granted to a fair and accuratereport of parliamentary proceedings covers not onlythat which would otherwise have been actionable 02the basis of libel, but also that which wouldamount to contempt of court. Lord Banning did, inthe Court of Appeal in the case of A.G. vs. TimesNewspapers Ltd.(12) state:
"as soon as matters are discussed inParliament they can be, and are, reported atlarge in the newspaper.. The publication inthe newspapers is protected .by the law.Whatever comments are made in Parliament,they can be repeated in the newspaperswithout any fear of an action for libel orproceedings for contempt of court. If it isno contempt for a newspaper to publish thecomments made in Parliament, it should be nocontempt to publish the selfsame commentsmade outside Parliament."
[1983] 1 Sri LR.
.154Sri Lanka Law Reports
no earlier authority has been referred to by LordDenning in support of the principle that suchproceedings can be published without running therisk of being brought up for contempt of court.Yet, if previous authority is necessary, then theexpression of opinion by Chief Justice Cockburn, inMason's case(l), in setting out the illustrationbrought out at page 90, could be relied on. Theillustration so set out is a good example of'scandalising a judge', and if the public could beinformed of what passes in debate in regard to sucha matter then it is a clear instance of 'theaforesaid principle so set out by Lord Denning inthe Court of Appeal. An expression of opinion on aquestion of law by so eminent a judge is by itselfhigh authority. It was submitted that, in anyevent, as the House of Lords has subsequentlyreversed the decision of the Court of Appeal LordDenning's, judgment would be of no avail. Hie. Houseof Lords did undoubtedly set aside * the decisionof the Court of Appeal to discharge the injunction,but npt on the basis that the' principle SO setout by Lord Denning in the Court of Appeal is wrongin law. The mere fact that the appeal to the Houseof Lords was allowed would not in any way detractfrom the force and authority of any principle oflaw formulated and set down in the judgment of theCourt of Appeal. It would have lost its authorityonly if the House of Lords did -deal with itpointedly, and did expressly state that suchprinciple is not good law. In passing, it may benoted that the European Court of Human. Rights -1979 Vol. 2. European Court-of Human Rights Reportp.245 did not agree with the view of the House ofLords.
It was further contended that the viewexpressed by Lord Denning shbuld be confined toEngland because Parliament in England was earlierthe High Court of Parliament vested with judicialpowers, and also because of the lex et consuetudo
,SCHewamanne v. Da Silva {Ranasinghe, J.)■ 155
Parliament! which was.peculiar to that- Parliament;and certain statements, appearing in Kielly vs.Carson, (85) to the effect that the power possessedby the House of 'Commons to deal with for contempt*was as h Court of Judicature and as .part of theHigh Court 6f Parliament. It transpired °that thestatements appearing at pages 66 – 75 .were onlysubmissions of Counsel, and that the judgment, inthe case commenced at page 83.. In the judgment.
itself it is stated, at page 69, that the power todeal with for contempt possessed by the House ofCommons is so possessed not ' because it is arepresentative body with legislative functions, but"by virtue of ancient usage and prescription", thatthe lex et consuetudo parliamenti forms part of theCommon Law of the land, that, according to that, lawand custom. High Court of Parliament before itsdivision, and the House of Lords and Coomons since,are invested with many peculiar privileges, that ofpunishing for contempt being one. These principelsrelating to the powers of the House of Commons todeal with for contempt of its own authority do not,in any way, render the aforementioned principle oflaw set out in the judgment of Lord Denninginapplicable to the facts and circumstances of acase such as the one now before this court -wherethe question is whether a court of law is. in anyway precluded from dealing with a person who haspublished an article which contains matter thatamounts to a contempt of such court'. In any event,it must also be noted that, under Article 4(c) ofthe Constitution, whilst the judicial power of thePeople is now exercisable by Parliament through thecourts and the other institutions specifiedtherein, Parliament can exercise directly thejudicial power of the People in respect of thematters spelt out in the said sub-Article.
That the same reasoning, which applies incases where a party seeks to restrain the
156Sri Lanka Law Reports* [1983]1 Sri LR.
)-.-=:::1i—■
publication of a libel, be made applicable also tocontempt of court is a view that has been againexpressed by Lord Denning – although on thatoccasion it was in respect of a civil -action andthe publication was only a programme proposed to bebroadcast by the British Broadcasting Corporation -in 1979, in the case of A^Gs vs. B.B,C.(55) at 318.
In administering ' the law of contempt ofcourt, the courts have been called upon to considertwo important principles relating to two aspects ofpublic interest, each of which is of paramountimportance in . any parliamentary system ofgovernment, and which are also now enshrined in theConstitution : the public interest in the. adminis-tration of justice. The approach which the EuropeanCourt of Human Rights adopted in the 'Times case(.supra), viz : that the Court is faced.not . with – achoice between two conflicting principles, but witha principle of freedom of . expression that issubject to a number of exceptions which must benarrowly interpreted, cannot, however, be con-sidered in this Island as no restrictions have yet.been prescribed by law in relation to contempt ofcourt under the provisions of sub-article (2) ofArticle 15 of the Constitution.- We have, therefore,to continue to walk the tighterope, performing thebalancing act prescribed by the House of Lords inthe Times case (supra) and referred to earlier.Contempt of Court is punished, as has been-set outearlier, not because those who are charged with theresponsibility . of administering justice areconcerned about their own dignity but because itundermines the confidence of the public not only•of the parties to. a .particular'suit but also allpotential litigants in the due administration ofjustice by the courts of law established by law.The administration of justice, as has already beenstated, is a matter of tremendous importance and ofutmost concert to the public. The freedom of speechhas always been of paramount importance to the
sc
Hewatnanne v. De Silva ■ (Ranasinghe, J.)
157
public; for, it is. one of the fundamental featuresof parliamentary system of.government without-whichparliamentary democracy would be a mockery. Thelaw of contempt of court constitutes a directinterference with the freedom of speech;- and, inthe delicate exercise of assessing the claim ofthese two competing interests both of which areequally Indispensable, they have both to becarefully weighed and finely balanced. Whilst, onthe one hand, the freedom of speech, should not belimited more than is really and truly necessary, onthe other it cannot be permitted in a situationwhere there is a real .likelihood of causingprejudice to or interfering with the administrationof justice.
Article 14 (1) (a) of the Constitutionguarantees to every citizen the freedom of speechand expression including, publication. The lawrelating to contempt of court is a restriction onthe said freedom of speech; but as set out earlierthe combined force of the provisions of Articles168 (1) and of 16 (1) render such restriction validand operative. At an early stage of the proceedingsbefore this court it was contended, on behalf ofthe Respondents, that the Constitution promulgatedin 1978 'advanced the rights of the Press' and thatthe law relating to contempt of court dealing withpublications in the Press, which was in force inthis Island at the time the Constitution came intooperation, requires to be reviewed. The Consti-tution has not granted any specific rights to thePress of this Island.. No special or exclusiveright, which has not been granted to a citizen ofthe Republic, has been granted to the Press. Noright, over and above the rights granted to acitizen of the Republic, has been granted to thePress of the Republic. The rights., which the Pressenjoys, constitute only an amalgamation, if at all,of the rights of the individual citizens of theRepublic. The Constitution has not vested in , the
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Press any right which It did not enjoy earlierunder the common law; nor any right which a citizenof the Republic is not granted under the Consti-tution. The fundamental rights enjoyed by the Pressunder the Constitution are nothing more end nothingless than the rights which even the. humblestcitizen of the Republic Is entitled tb.
Article 3 of the Constitution provides : thatsovereignty is in the People and is inalienable ;that sovereignty includes the powers of thegovernment, fundamental rights and the franchise.Article 4 of the Constitution which sets out themanner in which the sovereignty so vested in thePeople should be enjoyed and exercised, provides,inter alia: in sub-article (a) that the legislativepower of the People shall be exercised by Par-liament, consisting of elected representatives ofthe People and by. the People at a Referendum ; insub-article (b) how the executive power of thePeople should be exercised ; in suhr – article (e)how the judicial power of the people should beexercised. Under the Constitution the three mainpowers of government vis; the legislative, theexecutive and the judicial, are, even though they-are to be exercised by Parliament, the President ofthe Republic and the courts respectively, allnevertheless vested in the People. The People ofthis Island have therefore an inalienable andunquestionable right to know and take an interestin all that takes place, inter alia, both inParliament and in the administration of justice.The administration of justice has always been, in aparliamentary system of government, a matter ofboth great and profound public interest, and publicconcern. It has now become even more so under theConstitution now in operation. Parliament not onlyexercises the legislative power vested in thePeople, but also consists of the elected repre-sentatives of the People. That being so, what auchelected representatives say and do in Parliament,
157
SC .
Hewamanne v. De Silva (Ranasinghe, J.)
and vhat takes place in Parliament is of tremendousimportance to the People and the People must knowand have access to information of all such matters,subject only to any restrictions imposed by the lavof the land. The necessity for and the importanceof informing the people of all proceedings inparliament have been very aptly and forcefully setout by Chief Justice Cockburn veil over hundredyears ago, in the case of Mason vs. Walter,(1)referred to earlier; and in view of its greatrelevancy I take leave to quote at length,com&encing from page 89
"It seems to us impossible to doubt that itis of paramount public and national impor-tance that the proceedings of the houses ofParliament shall be communicated to thepublic, who have the deepest interest inknowing what passes within their walls,;seeing that on what is there said and done,the welfare of the community depends. Wherewould be our confidence in the government ofthe country or in the legislature by whichour laws arc framed, and to whose charge thegreat interests of the country are comm-itted, where would be our attachment to theConstitution if the great council of the.realm were shrouded in secrecy and concealedfrom the knowledge of the nation? How couldIthe communication between the representativesof the people and their Constitutions-, whichare so essential to the working of the repre-sentative system, be usefully carried on, ifthe constituencies were kept in ignorance ofvhat their representatives are doing? Whatwould become of the right of petitioning onjail measures pending in parliament, theundoubted right of the subject, if the peopleare kept in ignorance of what is passing ineither house? Can any man bring himself todoubt that the publicity given in modern
.Sri Lanka Law Reports
[1983]lSnL.R.
160
times to what passes in parliament is essen-tial to the maintenance of the relationsubsisting between the government* the legis-lature and the country at large?"
Dealing with the argument that* even so* debates inwhich the character of individuals is brought intoquestion should not receive publicity, the ChiefJustice proceeded to state at page 90 :
" ..there is perhaps no subject in which
the public have a deeper interest than in allthat relates to the conduct of publicservants of the state, no subject of parlia-mentary discussion which requires to be madeknown than any inquiry relating to it, Ofthis no better illustration could possibly begiven .than is afforded by the case before us.A distinguished counsel whose qualificationfor the judicial bench had been abundantlytested by a long career of forensic medicine*is promoted to a high judicial office* andthe profession and the public are satisfiedthat in a most important post the services ofa most competent and valuable public servanthave been secured. An individual comesforward and calls upon the House of Lords totake measures for removing the judge* in allother respects so well qualified for hisoffice* by reason that on an important occa-sion he had exhibited so total a disregard oftruth as to render him unfit to fill anoffice for which a. sense of the. solemnobligations of truth and honour is anessential qualification. Can it be said thatsuch a subject is not one in which the publichas a deep interest, and as to which it oughtnot to be informed of what passes in debate ?"
The Chief Justice then proceeds to discuss, at page94, why it is so very desirable that all public
SC .How a manna v. Da Silva (Ranasingtie, J.)1$1
functioaj.' ieo, including judges, should be open to
criticise :
"Comments on government, on ministers andofficers of state, on members of both housesof parliament, on judges, and other publicfunctionaries are now made every day whichhalf a century ago would have been the sub-ject of actions or ex office information, andwould have brought down fine and im-prisonment on publishers and authors. Yet whocan doubt that the public are gainers by thechange, and that though injustice may oftenbe done, and though public men often have tosmart under the keen sense of wrong inflictedby hostile criticism the nation profits bypublic opinion being thus freely brought tobear on the discharge of public duties."
These statements were made well over a century ago;but how true they sound even today, how appositethey are even now.It has been submitted that,though such observations may apply to other func-tionaries, yet. limitations should be placed uponthem in so far as they relate to judges lest theindependence of the judiciary be undermined. Theonly limitation would be that the limits of faircriticism be not exceeded and the field of contemptof court not be entered into. Subject to thissalutary restriction – and the reminder which willbe referred to later on in this judgment – a judget06 stands, at the conclusion of a case, open tocriticism, however rumbustious it be.,
Th&i proceedings in Parliament arepresumed conclusively to be of public inlerest, andthat the nature of the activities o£ Parliament(and of the courts) are such that they are treatedas conclusively establishing that the publicinterest is forwarded by publication -of reports oftheir proceedings is also a principle which has
Sri t anka Law Reports
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It'2
been accepted – in the 19t.h century in Wason's case
, and in the 20th century in Webb*s case (36) in1973,and in 1948 by the Privy Council in M-.G.Perera*s case (67). The Privy Council was also ofview that reports of judicial and parliamentaryproceedings stand in a class apart from reports ofproceedings of other bodies, in regard to whichtheir status alone was not to be conclusive, butthe subject matter dealt with in the particularreport had also to be considered. So that, as faras Parliamentary proceedings are concerned, nodistinction is to be made on the basis of thesubject-matter dealt with, or the nature end thecharacter of such subject-matter. A newspaper,which, therefore, publishes, without malice andwith the sole subject of conveying information tothe public, a fair and accurate report of ,!aproceeding in Parliament", publishes somethingwhich the law presumes "conclusively to. be ofpublic interest", and which the law also treats as"conclusively establishing that the public interestis forwarded by (its) publication."
During the last three or . four decades thereseems to have been considerable interest evinced inEngland in regard to an examination of the state ofthe law of contempt of court ; and severalcommittees, chaired by experienced and distin-guished judges of the superior courts, have, fromtime to time, examined the legal position relatingto contempt of court and have recommended severalchanges and reforms to be brought about in thisparticular branch of the law : a committee chairedby Lord Shawcross in 1959 ; a committee chaired byLord Salmon in 1969 ; a committee chaired by LordJustice Phillimore in 1974. The opinions expressedand the recommendations made by these severalcommittees – even though they have not all beengiven legal effect to – serve- to indicate themodern approach to a fc^ nch of the law which isvery ancient in ori«:r id which is of the utmost
Heivamanne v. De Silva' (Ranasinghe, J.)
163
SC
ioportance in the field of administration ofjustice.
The Report of the Coamittee on Contempt ofCourt chaired by Rt. Hon. Lord Justice Phillimore,which was presented to Parliament in England,staties, at page 69, in regard to the offence ofscandalising that : "most attacks of this kind arebest ignored. They usually come from disappointedlitigants or their friends. To take proceedings inrespect of them would merely give them greaterpublicity and a platform from which the personconcerned could air his view further. Moreover theclimate of opinion- nowadays is more free. Authorityincluding the Courts, is questioned and scrutinisedmore than it used to be. The Lord Chief Justicesaid in his evidence to us :"Judges" backs have gotto be a good deal broader than they were thought tobe thirty years ago". It is no doubt because ofthis, and in pursuance of the spirit of LordAtkin's dictum that practice has reverted to whatit was before the turn of the century when it wassaid that:
'Courts are satisfied to leave to public
opinion attacks or comments derogatory or
scandalous to them.'
The Phillimore committee was of opinion that thetime has come to bring the law into line with suchpractice, and recommended that the branch of thelaw, known as 'scandalising a judge or court' bedone away with and be replaced by a new strictlydefined criminal offence to be triable on in-dictment and in respect of which the defence thatthe allegations were true and that the publicationwas for the public benefit be available to thedefence. This recommendation has, however, not yetbeen implemented, although the Law of Contempt. ofCourt Act was enacted in 1981.
164 Sri Lanka Law Reports [1983JI Sri L.R.
In their report The Inter-departmentalCommittee on the Lav of Contempt as it affectsTribunals of Inquiry chaired by Lord JusticeSalmon, in the year 1969, had this to say in regardto the making of allegations of impropriety againstjudges, (and which appears at page 190 of the bookentitled Judges on Trial by Shimon Shetreet – andedited by Gordon J. Borrie-1976) :
"In the most unlikely event, however, therebeing just cause for challenging the inte-grity of a judge, it could not be contempt ofcourt to do so. Indeed it would be a publicduty to bring the relevant facts to light."
A committee chaired by Lord Shavcross – asset out at p.191 in Judges on Trial (supra) – whichhad also considered the question of contempt ofcourt had recommended that there should be theopportunity of making bona fide charges ofpartiality or corruption against a judge and thatthe appropriate means for this purpose was not thePress but a letter to the Lord Chancellor or thecomplainant's Member of Parliament. In this casenow before us, the document "A” does not representa complaint made by Mr. de Alvis to the Respon-dents' newspaper. It is only a publication of afair and accurate – no question has been raisedabout its. fairness or accuracy – report ofsomething done in Parliament.
The last successful prosecution for'scandalising a judge' in England has been overhalf a century ago – 1931 in the case of R vs.Colsey (supra) when an allegation of partiality wasalleged against Lord Justice Slesser, who had,earlier, as Solicitor – General, steered the rele-vant legislation which came up for considerationbefore him in this case, by the editor of themagazine Truth, and the editor was fined. This
Hewamanne v. be Silva ' (Ranasinghe, J.)
165
SC
decision has, as earlier stated, come in for ouchcriticism, and, according to Borrie and Lowe(supra) – p 162) 'may be open to question*. Theonly subsequent attempt, according to the reporteddecisions, to have a person dealt with under thishead of contempt was in 1968 when Quintin Hogg,Q.C.was brought up before the Court of Appeal which wasincidentally the very first occasion, according toLord Denning that the Court of Appeal in Englandwas called upon to deal with a case of contemptagainst itself – in respect of an article writtenby him in the magazine called "Punch": It was inthe course of the judgment in this case that LordDenning used with reference to the court's power todeal with for contempt, the now well known words :
"It is a jurisdiction which undoubtedlybelongs to us, but which we will use mostsparingly : more particularly as we ourselveshave an interest in the matter. Let me say atonce that we will never use this jurisdiction'as a means to uphold our own dignity. Thatmust vest on surer foundations. Nor will weuse it to supres3 those who speak against us.We do not fear criticism, nor do we resentit. For there is something far sore importantat stake. It is no less than freedom ofspeech itself. It is the right of every manin Parliament or out of it in the Press orover the broadcast to make fair comment evenoutspoken comment on matters of publicinterest. Those who comment can dealfaithfully with all that is done in a courtof justice. They can say we are mistaken andour decisions erroneous, whether they aresubject to appeal or not. All we would ask isthat those who criticise us will rememberthat, from the nature of our office we cannotreply to their criticism.We cannot enterinto public controversy. Still less into
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political controversy. We oust rely on ourconduct itself to be its own vindication."
It may, however, be very difficult to draw theline between strongly expressed criticism andscurrilous abuse.
If such conduct as was considered …in thecase of The King vs. Nicholls (56) could be madethe subject of public comment, then public know-ledge of the consideration of an allegation ofconduct, which is not so apparent to the public; bythe highest Legislature of the country cannot besaid to cause more damage to. the person or theinstitution concerned.
Although, amongst the authorities cited to usat the hearing of this matter, several of them areinstances in which the offenders have .been dealtwith, yet, in quite a few, the defences have beenupheld. After a review of the judicial decisionsrelating to this particular head of contempt,Arlidge and Eady in their book on the Law ofContempt of Court (1982) state at page 163 :"Overall it is difficult to escape the feeling thateven in the few cases where matter has been held tobe scandalous, no great harm would have been doneto the administration of justice if the particularpublication had been passed over unnoticed. If, assuggested, the correct test is whether there is arisk of serious interference with the adminis-tration of justice, it may be that there will befew cases where this contempt will be established."
The modern approach in regard, to thiscategory of contempt of court seems to be heavilyin favour of the courts being content "to leave topublic opinion attacks or comments derogatory, orscandalous to them", and "to rely on (their)conduct itself to be (their) own vindication."
SCHewamanne y. De Silva. 167
Wason's case (1) set out the grounds upon whichpublicity to Court proceedings are given thoughinconvenience may be caused to individuals by muchpublications, and proceeded to accord to. reportsof the proceedings of Parliament a .similar pro-tection in law. Pearson,J. did .in' Webb's case(supra) set out five reasons, which tiad ' beencollected from the earlier authorities, – why pri-vilege has been accorded fo judicial proceedings :that court proceedings are open to the public, andtherefore reports of such proceedings should befreely permitted; that the administration Ofjustice concerns everyone, and that it is wellthat the conduct of Judges- should'if necessary bebrought before the.bar of public opinion like allother matters of public' concern; that theeducation of the public as to the details of the'administration of justice ; that the partiesaffected may be well be better off with a fair andaccurate report than with rumours circulating ; inbalancing the advantages to the public ' by thereporting of judicial proceedings^ against the' detriment to individuals of being incidentallydefamed; the general advantages to the country inhaying proceedings published more than counter-balances the. inconvenience to private persons,whose conduct may be the subject ' of 'suchproceedings.
Shetreet : Judges on Trial'1976t edited byGordon J, Borrie refers, at page 98, to. a lettbr,dated 9.2.1921, written by – the then ‘ '.LordChancellor, Lord Birkenchead, to the then PrimeMinister of England, Mr.Lloyd George stronglyopposing a proposed' appointment to .a highjudicial office. In that. letter the lordChancellor had, quoting the terms of., the Act ofSettlement of 1701, stated that. the’= Judges' . ,, ‘ beremovable only for the most serious; 'judicialmisbehaviour and then in the most public and openmanner”. Shetreet at page 150, also refers to an
i [1983] 1 Sri UL
168 .Sri Lanka Law Reports
incident which had taken place in England in theyear 1973 in which two highly placed Judges of theland had figured prominently in public withreference to a matter arising from the criticism,by trade unionists and members of Parliament, ofthe conduct of 4 judge in his judicial capacity vthe President of the Industrial Relations Court(Sir John Donaldson) made an order of seques-tration against the 'political fund' of a largetrade union ; the trade union concerned refused toobey the said Order ; a campaign of criticism wasthen undertaken by the trade unionists and theLabour backbenchers against Sir John Donaldson ; amotion, signed by 187 Labour Members of Parliamentwas also put down in Parliament, calling for theremoval of Sir John Donaldson on the ground of"political prejudice and partiality" ; Sir JohnDonaldson then defended the decision of his Courtin public in order to set the record . straight ;Lord Eailsham the then Lord Chancellor, didhimself, in a public speech made as the head ofthe judiciary, call upon the public to note theidentity and the party of the signatories to thesaid motion, and to strike a blow for theintegrity and independence of the judges ofEngland. Learned Counsel appearing for the Res-pondents, did also draw the attention of thisCourt to several instances even in this Island inwhich publicity' had been given in the local Pressho. matters pertaining to the judiciary and theadministration of justice, which could have comewell within the ambit of 'scandalising a judge orCourt'. Such publicity has not been shown to havebrought about any loss of public confidence inthe judiciary of :.this Island or to have resultedin any risk of' serious interference with theadministration of justice in this Island. Thesubmission was made that any complaint against ajudge qua judge should be directed to theauthority, which under the law has the power to
Hewamanne v. De Silva (Ranasinghe, JJ
169
&
take steps against such, judge, and that nopublicity should be given to such complaint or tothe steps taken upon it until a final decision ismade and that the public should be made aware ofsuch complaint and the proceedings only after thefinal decision is made in regard to such com-plaint. The advantages, if any, of such a 'dosed'procedure, are, in ay opinion, outweighed by thebeneficial advantages of a procedure which is"most public and open". It. is in the bestinterests of the very person against whom such anallegation has been made that it be not fullyconcealed from the public and that no occasion beprovided for the circulation of rumours which inpractice has often been found to cause immensesuffering to the helpless individual. Hie innocentneed not fear such openness. A person whoseconscience is clear need not and will not fight' shy of an 'open' procedure. The damage that wouldand could be caused both to the individual and tothe institution whpre access. to information iscompletely barred heed hardly be stressed. Anypain of mind that would be caused, and any stigmathat would be attached to one, who is innocent, asa result of the public being informed of any suchcomplaint, and of the steps being taken in thatbehalf by those in authority, would be onlytemporary; for, once the innocence of the partycomplained against is vindicated, and he isexonerated,the same degree of publicity could andwould be given to such decision. A .responsiblePress – and other media with an equal sense ofresponsibility – could be relied on to do whateveris in their power to see that the fair name of theofficer concerned, which might have been dimedeven in some small measure by their own act, isrestored to its original lustre. Such informationgiven to the public, regarding- the complaint andthe steps that are to be taken by the country'shighest legislature to have such complaint in-quired into by the appropriate authority, would.
170 Sri Lanka Law Reports [1983] 1 Sri L.R.
far from shaking the confidence the public has inthe institution or in the individual, operate toassure to the public that the stream of justicecontinues, and would continue to flow with all itstraditional: and pristine: purity. The adminis-tration of justice Would stand to.lose more thanit would gain if the judges and the Courts were tobe shielded from public scrutiny.
It is legitimate to proceed on the basis thatall. proceedings in Parliament are Conducted with avery high sense of responsibility,' and- always inthe best,interests of the People, -whose electedrepresentatives the Members of' Parliament are -andin idiom also the Constitution of the Island . hasvested the sovereignty. That-the- House . is deeplyconscious of the importance of, and . the specialplace that should be accorded to the adminis-tration of justice,' and also of the solemn andresponsible manner in which it must proceed in allmatters connected with it is evident, from theStanding Order No: 78, wherein it is provided thatthe conduct of Judges or other persons engaged inthe administration of justice shall not be raisedexcept upon a substantive motion. As earlierstated, before such a motion could be moved on thefloor of the House, certain procedural steps,required by the Standing Orders of the House, andwhich, are also subject to the orders of theSpeaker, have-to be complied with. Furthermore,all proceedings on the floor of the House aresubject to the direction and control of theSpeaker. The House has the power to prohibit ■ thepublication of any of its proceedings. ' The Housealso observes a ' well established procedure inregard to natters that are sub judice. It has beenstated that whatever salutory precautionarymeasures there be, they will be open to abuse.Then, as has been said, anything of value isliable to be abused. That, however, does notjustify an approach that the Members trill act in a
■ .SC'..Hewamanne v. Da Silva (Ranasinghe, Jl- .K 17
manner that is not compatible with the sense ofresponsibility that the People who elected themhave a .right to expect,-and do in fact expect-ofthem.
Lord Denning did, in the course of thejudgment in the Times case (supra) refer to thedesirability of the conventions of Parliamentbeing the same as the lav administered in the:.Courts in matters-affecting the Courts in order toprevent any interference with the administrationof justice. A similar expression of opinion wasmade by Lord Phillimore in the course of hisjudgment in the same case: and the. third . judgeLord Scarman, suggested that, although the courts,subject only to the legislative power of Parlia-ment, can determine what constitutes contempt ofcourt, yet, in an area which enjoys the attentionof both Parliament and the courts and wherediscretion is a major element in the; process of.decision it is the duty of the courts to note thepractice of the House of Parliament and to act inharmony with it, so far as the lav allows.
No allegation of malice has been : madeagainst either of the Respondents by the Peti-tioner in his affidavit; and learned Queen's.Counsel did also, in the course of his sub-missions > state that no such allegation is beingmade. There is no reason why the 1st Respondent'sassertion that his was an act done bona fide 'endsolely for the purpose of supplying information tothe public should not be-accepted.
.There is another aspect of this matterto b$ considered – whether a publication such as"A" could be said in any way to have an impact onanother well. known – principle – of parliamentarydemocracy, viz: the independence.of thejudiciary.This principle has been variously described as "acornerstone of democracy", "pillar of democracy",
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■i A
"the last bastion of freedom," the "bulwark ofindividual freedom". Whatever the description, thecharacteristics of this particular feature, whichis one of the hallmarks of . parliamentarydemocracy, are well- known and need no elabora-tion. Having been originated, and developed inEngland it has been readily accepted and adoptedas an inherent and indispensable characteristicof parliamentary democracy. With us, in thisIsland, this principle is how enshrined in theConstitution itself. It is referred to ip the Pre-amble as one of the assurances granted to thepeople and is embodied in the chapter relating tothe Judiciary. The relevant provisions areArticle 107 to Article 117. Article 107 (2)makes provision for the removal of judges:by an
order of the President, who, in terms of Article 4
, alone exercises the executive power of the• people,, upon an address of Parliament, which, – interms of Article 4 exercises, apart from thePeople themselves at a Referendum the legislativepower of the People; The proviso to sub-article
of Article 107 sets out the circumstances inwhich a resolution for the presentation of such .anaddress shall be entertained by the Speaker. Sub-article (3) of Article 107 states that Parliamentshall either by law or by Standing Order providefor all matters relating to the presentation ofsuch an address, and for certain specified stepsrelevant to such a resolution. No Standing Ordersmade in terms of Article 107 (3) have been broughtto the notice of this Court. Nor is there anythingto show that such Standing Orders have in truthand in fact been made. The resolution relevant tothese proceedings set down in the Order Paper, R
is, it seems to be dear., only the beginning of. the process which would, if it is so warranted,culminate in the resolution referred to in theproviso to sub-article (3) of Article 107. Thepublic interest in proceedings specified in sub-
SC-.Hmatamanne v. Do Silva JRanasingha, J7] -173
1y—
article (2) (3) of Article 107 is unquestionable.The publication "A" cannot T>e said to violate anyof the aforesaid provisions of the Constitutionrelating to the independence of the judiciary.
A consideration of the question, whicharises upon the p^ea put forward on behalf of theRespondents, as set Out above, leaves ne to theview that the protection granted by the common lavto a fair and accurate report of proceedings ofParliament published without malice and solely forthe information of the public though it containsdefamatory matter also protects a fair and accu-rate report of a proceeding•of Parliament, such as'A'. published without malice and solely for theinformation of the public and the publication ofwhich has not been prohibited by Parliament, eventhough such report contains matter which wouldotherwise have rendered the publisher liable to bedealt with under that branch of the law ofcontempt known as ’scandalising a judge or Court*.
There are just two other matters I would
like to refer to before T conclude this judgment.
The Press undoubtedly has a very importantand responsible part to play in regard to- theadministration of justice. As has been set out bySbetreet (supra) at p 179, Lord Denning has hadthis to say in regard to the role of the Press inthis field : "In every court in England you will,I believe, find a newspaper reporter ….He notesall that goes on and makes a fair and accurate
report of itHe is, I verily believe, the
watch-dog of justice. ….The judge will becareful to see that the trial is fairly andproperly conducted if he realises that anyunfairness or .impropriety on his part will benoted by those in court and may be reported in thepress. He will be more anxious to give a ..correctdecision if he knows that his reasons must justify
174
Sri Lanka Law Reports[1983] 1 Sri Lit
i 1 ■■———1‘r
themselves at the bar of. public opinion":"Jus-tice has no place in darkness, and secrecy.When a judge sits on a case, he himself is on.trial……..If there is any misconduct on (his)
part any. bias or prejudice, there is a reporter tokeep an eye on him"., Lord Shawcross, in the reportof the committee chaired by him "in 1965 on the’Law and , the Press' , referred, to by Shetreet(supra) at page 180 jhas observed..: "a large measureof responsibility rests upon;the Press to keep aconstant watch on the proceedings in.the courts atall levels to make such criticism as appearsnecessary in the interest of justice",The SalmonCommittee in 1969 (supra) has observed :"the
right to criticise judges……..may be one of the
safeguards which, helps to ensure, their, highstandards of.performance and also that the samemeticulous care which, has always, .been, taken, in.appointing them in the past will continue to betaken in the future". This "watch-dog" – anequally familiar and equally alert figure in ourown courts .has an extremely responsible andvital role to play in.the sphere of administrationof justice. It behoves this "watch-dog',therefore, not..to ."break loose .and have to bepunished for misbehaviour", but to discharge thetrust placed ;., in . it with a. .. deep..sense- of.responsibility and with dignity and decorum,always remembering that, in the words of LordDenning,, all,,that, the judges ask,of-all those who.criticise them id‘:
"……. remember that ;from the- nature of our
office we cannot replyfb their' criticisms.We cannot enter into .public .controversy.Still less, into, pplitical' controversy. Wemust rely on our conduct, itself to be its ownvindication."
It need hardly be stressed that theaforementioned decision operates to. protect
Henvmanfte v. Da 9fca fAbcM Cader, Jd>
175
reports – as are expressly referred to, and arepublished in the manner and with the objectspecifically set oat therein – only of proceedingsof Parliament, and also, of course, of courts. Itdoes not protect scurrilous outbursts againstjudges, qua judges, and courts by, for instance,"ill-informed, slap-=dash news-writers and pamphle-teers", who, if and when found answerable,will beseverely dealt with.
The Rule issued on the 1st and 2nd Respondentsshould, accordingly be discharged.
ABDUL CADS* J.
The facts are set down in the Judgment ofWanasundera, J. The news item which is Sitesubject matter of the charge has the heading:"Select Committee Probe of Mr.K.CT.E.de Alwis8Representations".
"F.D.B.'s pleadings prepared in the Judge'sGhambers ?"
Thereafter, two items in the motion areguogled out for special mention conspicuously andthen the entire motion before Parliament isreproduced. Mr.Nadesan agreed that neither theheadline nor the spotlighting of certain parts ofthe resolution will constitute contempt by itself,when there is a reproduction of the entire text of-the resolution in that news item, but that they,would aggravate the contempt only if the news itemamounts to contempt. In fact, in the, proceedingsbefore us,- there are no inaccuracies, to complain. about, except that some parts ef the resolutionhave been highlighted. (Vide Cook v. Alexander (23))
We are concerned in these proceedings onlywith the aspect of contempt dealing with scanda-
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Using the Court and I shall -Vnow'-'^deal. . with mmcases reported in Bofrie and Love on the Lay ofContempt on this aspect . of the .lay .where con"victions had been enteredinreapect ofnevspaperpublications,
In Rex vs. Gray {40)
"The terrors-of . Jfridustiee^; Dialling y±ll; hottrouble the…… reporters Very much. No
newspaper can: exist :^cypt cdpoh, its ::»erits.,v.: -Sv
MroJusticeflariingidj^hio^a^
journalist in Birmingham yho has euty tWlearn from the impudent littleman in horsed
halt, a ®icro<:osa iof .;;^n£eit ; and 'espty-'headedness, V who admonished the • ;';vpres#yesterday.."'
In Rex y»'
•. "We cannot^verdict given
this week, iii. the.libel, action brought • by theEditor" of’ the'. ';?46ming; 'Post against'' BV.Hafie.;Stopes as asubstantial miscarriage ofjustice.We are r.ot at all in sysapathy with bf .Stapes’,work or aiinsi bnt prejudice gainst those aiysought not td be allowed to influence e^inrt^EJustice in; the nannerin which they appeafed to' influence ht.justice* his
up.,., v'fjieidiii^^v toint;=4^i» '
. ever,isto ■sych;;-’Views:
as thoa*’ _^f Mr .. Stopes, *V cannot ^.vapparantlv''hope. j.or-a fair hearing ini S : court , ^presidedover by Hr^oatice Avory and there are so manyAvory,S."~,.C/-^.-
In Rex v. Coisey iSZ)
"Lord Justice Slesser who can hardly bealtogether unbiassed about legislation of this
SC-Hewamanne v. Oe Silva (Abdul Cader, J.)r< , 177.
type maintained that really it was a very nice provisional order or as good as one can bej expected in this vale of tears."
In the Evening Jfe»isi(39) :
"His Honour the Judge Windeyer has had anotheropportunity to show his utter want of judicialimpartiality and from the bench he hasdelivered once more a bitter and one-sidedadovcate's speech."
I now proceed to consider the news item whichis the subject matter of the charge.The veryheadline which the editor thought important tohighlight suggests gross impropriety to- a judge.What can be more partial than to permit a party toprepare the pleadings in the chamber of the judgewho heard the case ? The question mark makes nodifference. Nice distinctions that there was noallegation that the judge had a hand in it are ofno substance as the information carries asufficient innuendo. If not, why investigate it atall?
Yet another 'question' that brings thecourt into disrepute is that two Judges wereinfluenced by improper considerations.
Taking the entire article as _a whole, one isleft with no uncertainty as regards the effect thatthis item would have had on the public and it is' that what matters,not the respondent's .intention.
– ifi*-
Barrie and Lowe in mThe Law of Contempt^
"Allegations of partiality are probably themost common way in which the court has beenheld to be "scandalised".Thecourts are
particularly sensitive about such allegations
„.mirnm tawHBporop983JlSrt*t
y' ' —!i :;
.and there seems to be a clear distinctionbetween an allegation of partiality and anallegation of incompetence. This sensitivityis attributable to the fact that the verybasic function of a judge is to make animpartial judgment. Indeed the law goes on tosome lengths to ensure that a judge has nopersonal interest in the case, his decisionbeing considered void and of no effect if biasis proved; . nemo Judex inamacausa.
Allegations of partiality aretreated ve*yseriously indeed because they tend toundermine confidence, in the basic function ofa judge."
Sfe feorosamy v. Se&msrt (68§ .Soamtss^ J. states as. ifcftlnw
Harris* C„ J. said in the case .ofSuperintendent_ of Legel Affair, . Biiar v.Hurali Manohar (86).-
"It has been frequently laid down that nointent to interfere withtheduecourseof
justice, or to prejudice thepublic needbe
established if the effectofthearticleor
articles complained of is to create prejudice,or is to interfere withtheduecourseof
.justice."
In regard to the precise meah^g »f ^nheWords 'if. the effect-is eWfeafe prejudiceor to interfere!, numerous judgments haveestablished,^^ that –
"the question- in every case is hot whether thepublication j.n fact interferes, but whether ittends to interfere withtheduecourseof
justice", (e.g., vide Metropolitan Music Hallv. Lake ; (87) In re Carhish, Staff v. Gill )(88).
^Bg. ..Maimmame V. Oe Silva . (Abdui Cader, J4
. therefore, in view of my finding that t-herespondents did ifot intend to interfere withthe course of justice, it is sufficient for meto address myself to the question whetherthese publications tend to prejudice thepetitioner and the other accused, byinterfering with their right to a fair andimpartial trial,”
In the English case of Rex v. Davies; (11) at p,40, which was quoted – with approval. in'- Attorns*-■General v. Baker and Others we -find words'.-to theSallowing effect :
“the real offence is the wrong done to thepublic by weakening the authorityand
influence of a tribunal which exists for theirgood alone…… «sueh conduct is pre-eminently
the proper subject of susmaary jurisdiction.
Attacks upon Judgesexcite in the
minds of people a general dissatisfaction with
all judicial determination and, whenever
men's allegiancetothe laws isso
fundamentally shakes, it is the most fatal anddangerous obstruction of justice, and in myopinion calls out for a more rapidand
immediate redress than any other obstructionwhatsoever; not for the sake of the Judges asprivate individuals, but because they are thechannels by which the King's justiceis'
conveyed to the people.To be impartial and tobe universally thought so are both absolutelynecessary for giving justice that free, openand unimpaired current which it has for manyages found all over this kingdom”.
Hideytullah, C. J., observed in Cooper v. Union ofIndia (68) :
“There is no doubt that the Court like anyother institution does not enjoy immunity from
18®Sri Lanka Law Reports[1983] 1 Sri LR.
fair criticism. This Court does not claim tobe always right, although it does not spare anyeffort to be right according to the best ofthe ability , knowledge end judgment of thejudges. They do not think themselves inpossession of all truth or hold that whereverothers differ from them, it is so far error.No one is more conscious of his limitationsand fallibility than a judge but because ofhis training and the assistance he gets fromlearned counsel he is apt to avoid mistakesmore than others……. We are constrained – to
say also that while fair and temperatecriticism of this Court or any other Courteven if strong, may notbeactionable,
attributing improper motives, or tending tobring judges or courts into hatred andcontempt or obstructing directly or indirectlywith the functioning of Courts is seriouscontempt, of which notice must and will betaken. Respect Is expected not only fromthose to whom the . judgment of the Court isacceptable but also from those to whom it isrepugnant. Those who err in their criticiseby indulging in vilification of theinstitution of courts, administration ofjustice and the instruments through which theadministration acts,- should take heed, forthey will act at their own peril. We thinkthis will be enough caution to personsembarking on the path of criticism."
Beg C.J. said in I?, v.. Mulgokar (78) as follows :
"In judging whether it constitutes a contemptof court or not we are concerned more with thereasonable and- probable effects of what issaid or written than with the motives lyingbehind what is done."
In C' rath Chandra Biswal v. Surendra Hohanty (89),
-SC- -; Hewamatme v. Da SHva {Abduf Catler, J.)". 181
’• f -r~ » ■ . – — ♦ '
. it-'Was targed that where a particular action orspeech of a Judge is the basis . for contempt,alleged either by way of .criticism or otherwise,then if the facts stated are true, an allegationthat such words or acts create a lack of confidenceot faith: in the administration — of justice willremain within the limits of the exercise of thenormal right of freedom of speech. This contentionwas held untenable.
Even the often quoted opinion of Lord Atkin ' inAsbsrd v. Attorney •Genets! of Trinidadl (57) hasfts reservations.
"But whether the authority and position Of anindividual judge, or the due administration ofjustice, is concerned, no wrong is committedby any member of the public who exercises theordinary right of criticising, in good faith,in private or public, the public act done inthe seat of justice. The path of criticism isa public way; the wrong headed are permittedto err therein; provided that members of thepublic abstain from imputing improper motivesto those taking part in the administration- ofjustice, and are genuinely exercising a. rightof criticism, and not acting in malice orattempting to impair .the administration ofjustice, they are ifsanne. Justice is not acloistered virtue; she must be allowed tosuffer the scrutiny and respectful, eventhough outspoken comments of ordinary men.11
– This judgment contains "a list ofqualifications to the right of: criticism ofjudicial actions detracting considerably from theforce of a doctrine of free, speech in legalmatters. .Amidst the euphoric praise normallysurrounding reference to. Ambard's essethesequalifications are overlooked"; this judgmentguarantees only "the ordinary right of criticism "
>62
•f
Law ReporO
[NSm SHk.fi
which is done " temperately and fairly" amd whichrefrains from imputing improper motives.
The fact that the respondent merely reproduceda resolution in parliament has no application tothe issue under consideration as I am concerned, atthis point, only with the question whether thewords in the news item per “se bring the court intodisrepute and scandalises the court and 1 have nohesitation in holding that they do .
I now come to the question whether therespondents can avoid liability on the ground ofqualified privilege. Notwithstanding the manycases cited to us, there is none directly in point.There are, however, a few cases that provideassistance to decide the issue before us, which Tshall consider at seme length.
In De Buse and Others v. McCarthy and Another
, the court held that the statute on which thedefendant'relied did not permit the defendants tosend notice to the public library of the boroughcontaining a report of the committee which wasdefamatory of the plaintiff in that case. Thedefendants then took up the plea that the councilhad a common interest with the ratepayers in thesubject matter of the words complained of aiid thatit was the duty of . the council and /hr it wasreasonably necessary and proper for. the council,forthe conduct of its business, to publish the wordscomplained of by all reasonable and convenientmeans to the ratepayers.
lord Greene, M.R.quoted the words of Lord Atkinson J—
"It was not disputed, in this case on eitherside, that a privileged occasion is, inreference to qualified privilege, an occasionwhere the person who makes a conmunication hasan interest or a duty, legal, social, ormoral, to make it to the person to whom it is
Hawamanna v. De Silva . (Abdul Coder, JJ
183
-SC.
made, and the person to whom it is so made has.,a corresponding interest or duty to 'receiveit. This reciprocity is essential."
These words are very similar to the defence putforward by the respondents in these proceedingsthat the respondents have a duty to inform thepublic and the public have a right to receiveinformation of what is taking place in Parliament..Lord Greene went on to say :
"I cannot see that it can . possibly be saidthat the council was under any duty to makethat communication to ratepayers. At thatstage the matter was, in a sense, sub judice,because the committee's report by itself couldhave no practical value unless and until ithad been considered by the council and thecouncil had come to some decision on if. . Thatdecision might have been, that – the report beadopted, or that the report be not adopted, orthat the report be referred back to thecommittee. The appointment of committees ofthis kind is part of the internal management'and administration of a body of thisdescription, and, whatever the. duty or theinterest, of the council might have'been" afterit had dealt with the report and come to somedecision oh it, .1 cannot see' that. at thatstage in the operation of the machinery.of theborough's administration there was any dutywhatsoever*to tell the ratepayers how > thewheels were going round. There may well havebeen a duty, or if not a duty.at any. rate, aninterest, of the- council . to inform, theratepayers of the result . of • its own.deliberation,"
As regards the. interest of the ratepayers toreceive information. His:Lordship.went on to say :
.184.Sri Lanka Low Reports[1983J1 Sri LR.
— -:;—
"It is obvious that ratepayers" areinterested in the proper administration andsafeguarding of their property and in the wayin which their council conducts its business,but wh*t; X any call the internal working ofthe administrative machine and all the detailsof its domestic deliberations in a case ofthis kind, are things which I should havethought ratepayers are not -in generalinterested in unless said until they emerge .inthe shape of some practical action orpractical resolution..”;
In the proceedings before us, theresolution was before the House and, if 1 may usethe words of lord Greene, it was a "domesticdeliberation" . in Parliament, and of "no practicalvalue unless and until if had been considered byParliament (Council)" and the Parliament (Council)had come to some decision.”•.in; Base case- (supra) at page 167,
The judgment of Goddard,!.J. is more interesting..He said:
"The statute does not, in my opinion, justifythe. council in doing or.oblige the council todo anything apprpaching that which they " did.If it had justified them in publishing, orobliged them to publish this report on thedoor of the town hall, the fa<jt that .a littleextra publicity was.given to it by sending itto the public libraries might merely result inthe plaintiffs being entitled to nominal, orsomething approaching nominal, damages, butthe statute does nothing of the sort."
Obviously, these words are intended to- mean thatthe defendants were guilty even if the statute hadpermitted the publication of defamatory matter.
SC. Hewamanne v. De Silva (Abdul Cader, J.J- 185
If a notice sent by the Council was considered an-offence, the position of the respondents cannot beany better. I am conscious that, the respondentspublished a resolution- before Parliament and notthe proceedings of aCounty Council and . Parliamenthas immunity unlike, the Council. The distin-ction would apply if Parliament had published orauthorised the publication, but in this case, therewas no such authority•*- It is. further to. be notedthat in these proceedings, it is not the defamationof an individual that is' in issue, . but .the veryinstitution of justice.:
This decision of mine will decide the subjectmatter of the charge before us; nevertheless, itis necessary to consider whether Speeches made inParliament can be reported if they affect judgesand the administration of justice.
In Surendra Mohanty v. Nabakrishna Choudhoury(24), Narasinghata, C.J. held that the words of theChief Minister in Parliament that "in manyinstances, the immaturity of the High Court isapparent" contains an. aspersion regarding thecompetency of the Judges of thi3 Court."
He went on to say further that the'words of theChief Minister that "in many instances the judgmentsof the High Cour ts were corrected ' by the SupremeCourt and'that "in many ins trices the Supreme Courtheld that the'High- Court has abused the powersgiven to it "tend to. lower ' the, authority of theHigh Court to a considerable7 extent and" bring theJudges into contempt." He said' that the use of theword' "abused" conveyed' the idea that the High Courthad abused its powers and "is indeed " objectionableand contains an imputation to the effect that thepowers were used improperly." Having discussed themerits on the facts in the speech of the Minister,the Lord'Chief Justice stated as follows
[lmjlSMUL.
196Sri Lanka Ltw Anporw
"In my opinion, therefore, the Chief Ministerhad no justification for saying that 'in manyinstances'the Supreae Court has held that theHigh Court has abused its powers.-’ I have nodoubt that Jie aforesaid speech in the passageof Sri Rabakrishua Choudhury (to put itmildly) was somewhat hasty and uninformed andwould clearly amount to contempt of this.Court .(emphasis is mine) (p. 172) ;
Then, he went on to discuss at length the inraunitythat members of Parliament enjoy- and scguitted theChief Minister.
However, the pressmen.who reported the speech ofthe Chief Minister ware not so fortunate. If theChief Minister’s speech in P&rliaoent "clearlyamounts to contempt of Court", the Press could fareno bett^ and they could not Claim issaunity toayeid conviction. Tfee learned Judg« said of theme
"So far as the Editor, and the Printer andPublisher q£ H0trubhumi are concerned, I haveno doubt:-that they have' ceEsnftted contempt ofCourt bypublishing die speech of the QiiefMinister in their daily .The slight discrepancybetween the detract of die speech as given inthe daitir*,'; and as. given In the official reportisThey Cannot claim immunity
under clmuMf (2). of . Jart.194 because their
daily is Mt ah authorised publication. Inview^pf;:-'^p^'£ar unc^nditionai apology, I do notwish to J*ss any sentence on them, but I wouldditcat ,d»^>to V pay/ Rsi 1QQ/^ (one hundredun^);aiiim8tr to the petitioner." (p.177,para22) f
In Perera v. Peirfs, (67), we find the following: –
"Reports of judicial and parliamentaryproceedings andiit may be, of some bodies
SC-Mumtumw v. Dm Sihn {AtxM &der, l).187
which are neither judicial nor parliamentaryin character,stand in a claaa apart by reasonthat the nature of thalr activities is treatedas conclusively establishing that the publicinterest is forwarded by publication ofreports of their proceedings. – -As regardsreports of proceedings of other bodies, thestattvs of these bodies taken alone is hotconclusive and'it. is necessary to consider thesubject matter dealt with in the particularreport with which the Court is conceaaed. . Ifit appears that it is to th£ public interestthat the particular report should be publishedprivilege will attach. If malice in thepublication is hot present and the publicinterest is served by the publication, thepublication of the report must be taken forthe purpose of Roman Dutch law as being intruth . directed to serving that iateaejsit-Aaiaus' lnjuriandi is negatived.
"On a review of the facts their Lqmdshipsare of opinion that the public interest ofCeylon demanded that the contents Of theReport should be widely cosmunicated to thepublic.The Report dealt with a grave matteraffecting the public at large, viz .y theintegrity of members Of the Executive' Councilbf Ceylon, some of whom were found by theCommissioner to have improperly hccepttaSgratificstions.lt contained '' the reasonedconclusions of a Commissioner wh® acting understatutory authority, had held lit enquiry efidbased his conclusions on evidence which hehad searched for and aifted.lt had, beforepublication in the newspaper, been presentedto the Governor* printed as a Sessional Paperand made available to the public by theGovernor, contemporaneously with a Bill -Ubichwas based on the Report and which was.- to be■ considered by theExecutive Council. The djue
188Sri Lanka Law Reports[1983] 1 Sri LR.:
Hr1 ——“—““—
' administration of the affairs.1 of Ceylonrequired that:this Report.in the light of itsorigin, contents and. relevance to the conductof the affairs of.Ceylon , and the course oflegislation should ’ receive the widestpublicity.v
This case would not support the respondents forthe reason that what ires published was the findingagainst a Member of Parliament; If .the conduct ofa judicial officer had been investigated and afinding made against him so as to remove ;him fromthe sphere of- administration of -justice*the
publication of the finding, the charges, reasonsetc., the speeches made or the resolution ;.to removehim- are very much in the public interest . This casewill be an authority only in these- – circumstances.But the same thing cannot be said .– of a pendinginquiryi the charges made and the speeches made – onthat occasion. To adopt Lord Greene M.R.'s words:
The internal working of the administrative'machine and all the details of its : domesticdeliberations.. .. ..-.
are things which I should ; have thoughtratepayers are not in ^general interested/'
JAien spending resolutions, the charges andspeeches madeon that occasion are published, itcannot be said – that the public -interest, is-"forwarded" for the-reason that -the . judge has amental bar;to act .independently without fear orfavour and the ■Suitor s 'have .no -. confidence – in thejudge, as juabice'shouldnot only be done butappear to be done,/ too. .It is best under thecircumstances to await the ;findl 'outcome to releasethe proceedings to the public* -Even assuming thatthese are ofpublic interest,. we are thenconfronted with the further problem of a clash oftwo interests/ the right Of the public to receiveand the press to publish information of public
SCHewerrsnnt V. Da Sttva (Abdul Cader, J.)>.. IS9
interest and the need to safeguard the dignity of,the Courts against scandalisatloa. As I hold the ‘scales evenly between these two interests, thescale weighs heavily in favour of the latter;' forit is in the interests of the public that the.dignity of the Courts is maintained untainted as1has bean stated in the various quotations I have'given earlier. "It is a wrong done to the public-by weakening the authorit and influence of atribunal vrhich exists for their good alone." Cn adeeper consideration, in fact, there is no conflictbetween these two interests because in protectingthe dignity of the Courts, it is the public-interest that is served.
I am certain that the vast mass of the citizensof this country would prefer that the independenceand good name of the judiciary be protected even atthe expense of their right to know what ishappening in Parliament in respect of Judges andthe Judiciary. The failure of the press to publishmatters of this nature trill not prejudice thatsection of the public-who wish to keep themselvesacquainted with Parliamentary proceedings. To them,the Order Paper, the Hansard and other'- suchofficial publications authorized by the Parliamentare available. It is the mass publicity innewspapers that reach the common man that can caus£harm to the proper administration of justice.
There are two other decisions that are relevant.Ihave nothing further to add to the observations ofand distinction made by Wasiasundera, J. in respectof the Judgment of Lord Denning in Cook v-Alexander (23).
0, •- -*■
In Sambttu Nath Jah V. Kedar Prasad Sinha(BQ) theLegislature passed a resolution to hold, an inquiryinto certain matters pending before Courts. Histdecision to appoint a Commission of Inquiry was
190
Sri Lanka Law Reports[J9S3JJ Sri LR.
< published in the Gazette* -AMinistergave a copyof that notification to a pressman who publishedit.They were both found guilty of contempt on the. ground thatthere was no provisionthat
"allegations of the nature contained in thisoffending matter must be printed in the OfficialGazette or in the public press."In appeal thisjudgment was reversed as there was. in fact,statutory provision for publication in the Gazette.That judgment did not go into the question whetherthe .press had a right' to publish "that resolution.Since the Gazette is the official organ for publicinformation, it may well be that the Court took theview that it necessarily follows that the press wasentitled to publish that resolution after it had. been published in the Gazette. It may, however, benoted that what was published, was the resolutionafter it had been passedvSecondly, there wasstatutory provision for giving information of thatresol ution to the public by publishing in theGazette.
The question does arise what is.. the .need for..protecting the judiciary when there are amplesafeguards provided by the Standing Order ofParliament.In the Orissa case referred te (24),Standing Order 189 of Parliament fa as follows:
' 1 '
. ^'A member while speaking shall not:
refer to any matter or fact on which ajudicial decision is pending.
<2>
(A) reflect upon the conduct Of …… any
Court of Law in the exercise of its judicialfunctions.;"
, SC .Hawafnanim v. Oe Silva (Akdul Cader, J.) .JfX
In seeking to puni9h the Chief Minister for hisspeech, "It was urged that under the moderndemocratic set-up Governments are paroles ininnumerable cases in the High Court, that if theylose some cases they are inclined to develop,'litigant's mentality and to abuse the Judges inthe State Assembly taking advantage of the immunityconferred by Cl.(2) of. Art. 194. Irresponsiblestatements may then be made by members of the Government on the floor of the Assembly which,after due publication in the official reports,would cause irreparable harm to the prestige of . theHigh Court and thereby affect its independence."It was also urged that in many instances theopposition may not be effective in checking suchmisuse of the right of freedom of speech and thatthe Speaker of the Legislature also may not bevigilant enough to call any member to o&der if binexceeds the limit.
"Under the modern democratic system acontingency of this type may have to be faced,especially when both the Opposition and the Speaker
are not vigilant enough to see that no. nssnher ofthe Assembly abuses his right of freedom of speechon the floor of the House." Surendra MohaQty v*Nabakrishoa Choudhury (24).
While it is clear that our .■ Legislature,too, enjoys the right to discuss all matters,concerning the judiciary subject to ourown
Standing Orders safeguarding the judiciary, thereis no reason whatsoever to extend the inaunity tothe press whose right to publish 'stand is nobetter and no worse position than any other personor body in Ceylon,' Perera v. Peiris (supra)
Parliament is a responsible bod y . an d canwell be expected to preserve and foster the dignityof the Courts in the interest*of the publlc.Btit.anequal duty rests on the Courts to safeguard that
192
'Sri Lanka Law Reports
same dignity.
[1983]! Sri UL
There are the various safeguards in theStanding Orders. But there may come an occasionwhen Parliament may deem it necessary, forinstance, to discuss a pending case or to questionthe integrity of one or more judicial officer;? andthe question will then arise whether a newspaperreport of proceedings would be in the publicinterest.If Parliament publishes to the public orauthorises the publication, of the. proceedings, it~-would be for the reason that parliament hasdecided that it serves the public interest. But ifParliament gives no such authority and leaves thematter open to the discretion of the publisher,Courts will be the best authority to decide whethersuch report serves the public interest, not onlyfrom the point of view of keeping the publicinformed, but also from the point of view ofpreventing scandalising of Court or diminishing itsauthority. The publisher is not prevented frompublishing such proceedings, but he would do so athis risk, .-
I find the respondents guilty.
. As regards punishment, this news^ itemcontained a matter which was much in the publicview as newspapers had been carrying news of thedecisions made against Mr. K.C.E. de Alwis and thesubsequent turn of events, of the complaint to theHon. President, the decision to appoint aCommission and the protest by the Bar Association.In the past, too, newspapers had carriedproceedings in Parliament as, for instance, theresolution against a former Chief Justice who wentto the Airport to send off a Prime Minister againstwhom there was an election petition pending beforehim. The proceedings before the PresidentialCommission had been carried extensively where theconduct of certain judges had been discussed 'muchto their disfavour. Vhen the respondents published
SC ■.Hewamanne v. De Silva (Abdul Cader, J.). 193
this particular item, it would have never been intheir mind to be on guard against a charge ofcontempt in view of the fact that such previousreports had never been the subject of any form ofaction. Even these proceedings were not initiatedby this Court, but by a Citizen, the petitioner.
Veerasamy v. Stewart (63), Soertsz J.Said asfollows at page 486 :
"No one desires to fetter unduly the freedomof the Press, least of all -Courts of Law, forthe -Press can be, and has' often been apowerful ally in the administration ofjustice, but it is essential that judicialtribunals should be able to do their work freefrom bias or partiality and that the right ofaccused persons to a fair trial should beabsolutely unimpaired."
Khanna, J. stated in Sanbhu Nath Jah v. Kedar
Prasad Sinha (80):
"It would follow from the above that theCourts haive power to take action against aperson who does an act.or publishes a writingwhich is calculated to bring a Court or Judgeinto contempt or*to lower his authority or toobstruct the due . course of justice or dueadministration of law. As intention of thecontemner to cause those consequences is not anecessary, ingredient of contempt of Court andit is. enough , to show, that his act wascalculated to obstruct or interfere with thedue course of justice,. .and administration oflaw, there would be quite a number of caseswherein -the contempt alleged would be of atechnical nature.. In such … cases., the . Courtwould exercise circumspection and judicialrestraint in- the matter of taking action forcontempt of Court. The Court has to take into
194 .Sri Unto Urn topoittf1963] 1 Sri LR.
account the surrounding circumstances and thematerial facts of the case and tin conspectusof then to cone . to a conclusion Whetherbecause of some contumacious conduct or othersufficient reason the.person proceeded againstshould be punished for contempt of Court."
Gajendragadkar, C.J. was quoted in the Mulgmokarcssrtf: (78) referred to at page 743:
"We ought newer to forget 'that, the power topunish for contempt* large as it is, mustalways be exercised cautiously* wisely, andwith circumspection.Frequent or indiscriminateUse of this power.in anger or irritation wouldnot help to sustain the dignity or* status of. -the court, but may sometimes affect itadversely. Wise Judges never forget that the. host way to sustain the dignity and status oftheir office is to deserve respect from thepublic at large by the . quality of theirJudgments* the fearlessness^ fairness andobjectivity of their approach,* and by therestraint, dignity and decorum which theyobserve, in their judicial conduct."
Krishnar Iyer,J. stated as follows:
"The cornerstone of the contempt law is theaCcoanodation of two constitutional values-theright tif free speech and -the right ttiindependent justice. The ignition of contemptaction should tie substantial and mala fideinterference with fearless judicial action,not fair comment or trivial reflections on thejudicial process and personnel."
Having stated these principleSj the order he madeagainst the respondent was- as follows
"Many values like free press, fair trial.
SCHmmmann* v. D» Silva (Rodrigo, J. j195
judicial fearlessness and community. confidencemist generously enter the verdict………..
These diverse indicators^carefully considered*have persuaded oe to go no further* by aunilateral decision of the bench.This closure
puts the . lid on the proceedings
without pronouncing on the guilt or otherwiseof the opposite parties."
In these proceedings the respondents, it is agreed,had no malice but merely reproduced a cotton on theorder paper of Parliament which was sent to then asit was sent to other media. It had been a practiceto publish such proceedings of Parliament where theJudges have been criticised and no action had beentaken before against such publications. They haveaffirmed that they had no intention whatsoever ofslandering the Court or bringing the Court or thejudges into disrepute.
Under all these circiKustances» 1 am cl the opinionthat appropriate order would be to affirm the Roleand to discharge the respondents, without
punishment.
RODRIGO, J.,.
on.
I have had the advantage of reading indraft the leading judgment proposed by , my brotherWanasundera, J.and I cannot help but admire hisindustrious discussion of a vast array of ;cas^9.,decisions, monographs andtext writers cited to up,by the three Counsel appearing -for the petitionerand the two respondents and the Attorney'^Senorhlhimself appearing as amicuB reflecting, industry and'painstaking research behind their submission , inthe absence of any direct authority on the point.Ve 'are unanimously agreed that'the Rule should : notbe pursued further and I desire to express uiy "lineof thinking which differs from thatof my JMotherWanasundera, J.only in emphasis.! stall accorim^y
196 .
Sti Lanka Law Reports-[1983] 1 Sri LR.
be brief and avoid repetitious references to cases,decisions and material Of a like nature.
’’The law on this Subject (that is contempt ofCourt) is and must be founded entirely on publicpolicy" – Per Lord Reid in A,G, v. Times NewspaperLtd.(12). Such policy is naturally informed by thejudicial outlook of the time and age.What is lookedat with stern disapproval at one time to rein insocial indiscipline may be regarded with anindulgent eye at a more relaxed, time.Indigeneoustraditions and culture , colour , outlook andattitudes. Deep respect for elders, teachers,clergy, judicial institutions and authority areacknowledged facts of our prevailing culturenotwithstanding inroads by permissive, activity,both political ' and social; administration ofjustice must not permit it to deteriorate bybecoming permissive itself.
"Thefe is an abundance of empiricaldecisions upon particular instances of conductwhich has been held to' constitute contempt ofCourt. There is a dearth of rational explanation oranalysis of a general concept of contempt of Courtwhich is common to the cases where it has., beenfound to exist." Per Lord Diplock in the SundayTimes case (12) .That is because each individualJudge took .his own view, of the public policy.to be followed in each case no. doubt derived, fromclear implications from the , constitution, andjudicial decisions.We must therefore consider theappropriate public policy or the policy of the law..to .be applied in this matter. But let me firstexamine the genesis of this issue.
Representations have been made by no lessa person than a judge himself. The representationshave been made not in a haphazard or irresponsiblemanner. They have been made to His Excellencyhimself. His Excellency thereupon had referred the
, i
SC :Hewamanne v. De Silva (Rodrigo, J.)797
matter to the Parliament which under theConstitution is the body empowered to investigateand, if the allegations are proved, to present anaddress for removal in the Parliament, in themanner specified in the Constitution. To this endthe Parliament took the initial step of introducinga resolution to appoint a Select Committee toinvestigate. It was this resolution that appearedin the Order Paper of the Parliament for 8 March1983 and it was this Order Paper that was publishedin the Daily News the day before with the full textof the resolutions appearing therein giving thenames of the Judges concerned as they appeared inthe text.
‘Hie Daily News it must , be observedpublished this merely as a news item of interest tothe public in its' ordinary course of business.Nobody alleges any ulterior motive to it. That itis also a parliamentary proceeding is, in my view,wide of the question. That the matter arose in theParliament is an isolated fact in this context – orJust one circumstance in the whole business.
It is ironical, but nevertheless true,that this resolution had it been confined to theprecincts of the Parliament would not be a- scandalof the Court within its authoritative definition -See Rex v. Gray (40) Per Lord Russell, C.J. at page.62 and Awbard v. A/G for Trinidad Tobago.(57) at
page 709, but the moment it is allowed to seekpublicity, in the media in particular, outside theParliament, it falls within the definition of"scandalising the Court". Such the – implicationof Judicial decisions."The Court here is not facedwith a choice between two conflicting principles,as was argued, between freedom, of expression andpublic interest in the administration of justice.It is self-evident that no reader of the resolutionin the "Daily News" is going to have that catharticconfidence in the rightness and integrity of a
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decision handed down By the Judges concerned. Letus look at it this way. There is no provision forthe interdiction of the Judges pending the SelectCommittee investigation and they Bust continue tohear and.decide cases in the meantime. It must bea traumatic, experience for the litigants to have tosubmit to a case being heard by these Judges in thecircumstances. How did this result come about ? Itis the publication. Freedom to communicate andreceive information can be destructive of both thecommunicator and the recipient at times. It cancreate violence among the community at a time whencommunal passions have been aroused.Under EmergencyRegulations proclaimed during such disturbancesfreedom to publish news having a tendency tovlafl&ae passions or otherwise to createdisturbances is curtailed or censored altogether.
. person having, 'the public internes* rtfi ' heart at“times.l#se tfeat'scill. dispute /the -abed-.for. -muchcurtailment. . Likewise when the authority of thehighest judicial institution is threatened by apublication which has the potential to createunrest, among the public, does it hot create theneed for a degree of censorship ? If it is rightfor the political authority to clamp a censorshipat an executive level at a time of serious communalunrest, why is it not right for. judicial authorityto clamp a censorship on publications of the naturepreferred b° in tire field of administration ofjustice ? The judicial device to achieve thisResult is thelawof contemptof Court.This law issui generis. It has its own dictates. It is a law'Jborn of an inherant jurisdiction to protect thejudicialmachinery against attacks from any quarterpot at. the dignity of . Judges but at judicialauthority in the interests of . law "and order inwhich a country must be concerned as devoutly abwith any other of its important affairs. So thatth« lew of contempjt is in a class apart from anyother branch of law like qualified privilege in
■sc . newammne v. De SStva (fkxM&tb Ji)' JW*
reporting Pari-iameatary proceedings or proceedingsof a Court of law. The law of contempt vests theCourts with an unfettered authority where a•oftfeempt has been committed against it within its.authoritative definition to decide on any course ofaction, it thinks fit in pursuit of its policy. Sothat as Lord Diplock has said, the decision onmatters of contempt has to be empirical and basedon public policy founded on the need to maintainpublic confidence in the integrity of Courts andthe judiciary.
Great stress was laid on the immunityaspect of this issue but hardly any on its publicpolicy aspect.- This being a publication of areport of a Parliamentary proceeding, it was arguedat length, attracted qualified privilege just asmuch, if not more, as a report of a judicialproceeding. Qualified privilege, it appears, hasfive reasons to support it in so far as it relatesto reports of judicial proceedings.Two of thereasons namely, the one founded on the Court beingopen to the public is not applicable toparliamentary proceedings as the Parliament is notopen to the public in the way the Courts are, andthe other, that the publication of judicialproceedings enables the public to obtain aknowledge of the law by which their dealings andconduct are regulated, also does not apply toreports of parliamentary proceedings. But it iaclear that originally and in principle, there arenot many different kinds of privilege but ratherfor all privilege there is the same foundation ofpublic interest. The term "public interest" hasalsd several meanings. What is the meaning to beascribed to the public interest alleged to exist inthe publication in question ? It is in the publicinterest to maintain public confidence in .Judicialinstitutions. Is this public interest advanced bythe resolution being published at this stage? Indefamation cases reports of Parliamentary
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proceedings are protected as the legitimate concernof the public with the proceedings of Parliamentoutweighs the concern of the individual with theloss of his reputation in which the public by. andlarge may not be interested.But not so with publicconfidence in the administration of -justice» ; Inwhich every member of the public is concerned .‘ Athreat to judicial authority can shake the socialorder to its foundations .So that thepublic
interest behind qualified privilege isofa
different category altogether.
Two judicial pronouncements, namely.that"reports of judicial and parliamentary proceedings
stand in a class apart by reason that the.
nature of their activities is treated- asconclusively establishing that the. public interestis forwarded by publication of reports of theirproceedings" – per Lord. Uthwatt in Carers vr Petris(67) and that "the object (of the Act , of,Settlement) v&s to secure that, the Judges shouldhold office independently of any political or 'oteher.influence and should be removed only for the mostserious judicial misbehaviour and then in the.–moat,public and open manner", – per Lord BirkenheadLord Chancellor, Shetreet, Judges on Trial, – lendstrong support on the face of them in favour ofimmunity argued for the respondents. But when weexamine the cases where public interest attachingto reports of findings against the integrity' ofpublic functionaries is discussed, it appears thatthe public interest has been said to be served bythe publication only where the investigation hasbeen completed and a considered verdict arrived at- lAllbutt v. General Council of – Medical- Education,and Registration ($0) and Perera v. Peiris (supra).In the former case the headnote reads : "Held alsothat the publication of the minutes of the Council,containing a report of their proceedings comprisinga statement that the name of a specified medicalpractitioner has been removed from the Register
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201
or the ground that th the opinion of the Council hehas been guilty of infamous conduct in. aprofessional respect, is, if the report be accurateand published bona fide and without malice,privileged, and the medical practitioner cannotmaintain an action of libel against the Council inrespect of the publication." In the second casementioned, the Privy Council states "On a reviewof the facts Their Lordships aret of opinion thatthe public interest of Ceylon demanded that thecontents of the report should be widelycommunicated to the publiC.The report dealt witha grave matter affecting the public at large,, viz:integrity of members of the Executive Councilof Ceylon, some of whom were found by theCommissioner improperly to have acceptedgratifications. It , contained the reasonedconclusions of a Commissioner who, acting underStatutory authority, had held an inquiry and basedhis conclusions on evidence which he had searchedfor and sifted."
The statement of the Privy Council quotedabove that "reports of parliamentary proceedingsstand in a class apart by reason that the nature oftheir activities is treated as conclusivelyestablishing…!." is not meant in my view to be aproposition of law of a "blanket" character,applicable even outside the common law ofdefamation. It is not meant to be an eternaltruth. In the field of common law of defamationthe statement is true as the interests of thepublic in the proceeding of Parliament, as I havesaid, stands out as against the infinitessimallysmall chance of injury to private character and theequally small interest of the public in it. Butthis is not so in the case of blasphemous,seditious or obscene proceedings in parliament.If I am right in this, I am also right in sayingthat the proposition mentioned is not true in
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delation to a report of a parliamentary proceedingcontaining a scandal of the-Court.Such a report, inmy view, cannot advance the public interestinvolved, that is, in maintaining thepublic
oonfidence in the authority of the judiciary.Thepublic interest in information relating toproceedings of Parliament per se . is whollydisproportionate to the injury to the publicinterest in maintenance of judicial authority:,caused by a publication of a scandal to it.
therefore, think that this publicationattracts contempt of Court but, as far as the DailyHews is concerned,.I hold that the Rule should notbe pursued further. The Press should: voluntarilyobserve as the voice of the community silence wheaconfronted with matters -of thisnature the
publication of which, it is self-evident, is not.productive of any public benefit but onthe
contrary destructive beyond remedy of as .almostreligious faith that the community holds in . theintegrity of this institution and its capacity togrant relief. It is this faith that averts civildisorder and resort to estra—judicial remedxes.
Rule confirmed but not pursued further axsi ,Bapondemts discharged.