IBRAHIM v. NADARAJAH

011-SLLR-SLLR-1991-V-1-IBRAHIM-v.-NADARAJAH.pdf


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Ibrahim V. Nadarajah
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IBRAHIM
V
NADARAJAH
SUPREME COURTAMERASINGHE, J.
DHEERARATNE, J. &
GOONEWARDENE, J.
S.C. APPEAL : 46/86L.A. NO. : 58/86
A. NO. : 440/79
C. MT. LAVINIA: 1006/LDECEMBER 12, 1990
Supreme Court Rules – Leave to appeal – Failure to comply with Rules 4 and 28 of theSupreme Court Rules 1978 – Naming of party respondent.
Held:
A failure to comply with the requirements of Rules 4 and 28 of the Supreme Court Rules1978 is necessarily fatal.
Per Amerasinghe, J.
"It has always, therefore, been the law that it is necessary for the proper constitution ofan appeal that all parties who may be adversely affected by the result of the appeal shouldbe made parties and, unless they are, the petition of appeal should be rejected''.
Cases referred to:
Ibrahim v. Beebee et al (1916) 19 NLR 289
Ammal et al v. Mohideen et al (1933) 34 NLR 442
Wickremasooriya v. Rajalias de Silva (1937) 8 CLW 29
Seelananda v. Rajapaksa (1938) 11 CLW 36
Sinnan Chettiar and others v. Mohideen (1939) 15 CLW 47
Swatishamy v. Thelenis et al (1952) 54 NLR 282
Tambiah v. Sangarajah (1937) 39 NLR 282
Avichchy Chettiar v. Perera (1937) 40 NLR 65
Ramasamy Chettiar v. Mohamadu Lebbe Marikar (1937) 7 CLW 6410. Francina Fernando v. Kaiya Fernando and others (1957) 7 CLW 133.
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S. Mahenthiran for the substituted defendant – respondent – appellant.
PAD. Samarasekera, P.C. with Keerthi Guanwardena for'1st substitutedplaintiff – appellant – respondent.
PRELIMINARY OBJECTION to appeal
Cur. adv. vult.
January 06, 1991.
AMERASINGHE, J.
When this case was taken up tor argument Mr. Samarasekera, P.C.submitted that since the appellant had failed to make the secondsubstituted plaintiff-appellant in the Court of Appeal a partyrespondent in the appeal to this Court, there was a violation of Rules4 and 28 of the Supreme Court Rules, 1978 and that the appealought therefore to be dismissed.
Rule 4 states as follows:
"Every application for Special Leave to Appeal shall name asrespondent, … in the case of a civil cause or matter, the partyor parties in whose favour the judgment complained against hasbeen delivered or adversely to whom the application is preferredor whose interest may be adversely affected by the success ofthe appeal and shall set out in full the address of suchrespondents."
Mr. Mahenthiran argued that since leave to appeal had already beengranted, no objection could be taken on account of the failure toname a respondent once leave to appeal has been granted.
The granting of leave to appeal only determines the question ofaccess to Court and does not confer any advantages or exemptionson the appellant except this: Although ordinarily in terms of Rule 27all appeals to the Supreme Court must be upon a petition in thatbehalf lodged by the appellant, where leave to appeal is granted,Rule 12 makes it unnecessary for the appellant to file a fresh petitionof appeal. The application for leave to appeal is deemed to be thepetition of appeal. A petition of appeal, whether actual or deemed,however, must in terms of Rule 28 name as respondents all partiesin whose favour the judgment appealed against has been deliveredand all parties whose interests may be adversely affected by thesuccess of the appeal together with their full addresses.
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Mr. Mahenthiran, however, submits that the Rules of the SupremeCourt are directory and not mandatory and fhat the failure to complywith them is not necessarily fatal. It is not necessary for me In thiscase to consider so wide a proposition. I am of the opinion, however,that a failure to comply with the requirements of Rules 4 and 28 ofthe Supreme Court is necessarily fatal. Those Rules are meant toensure that all parties who may be prejudicially affected by the resultof an appeal should be made parties. How else could justice betweenthe parties be ensured? It has always, therefore, been the law thatit is necessary for the proper constitution of an appeal that all partieswho may be adversely affected by the result of the appeal shouldbe made parties and, unless they are, the petition of appeal shouldbe rejected. (See Ibrahim v. Beebee et al (i) Ammal et al v. Mohideenet ala] Wickremasooriya v. Rajalias de Silva (3); Seelananda v.Rajapakse w; Sinnan Chettiar and Others v. Mohideen(5) ;Swarishamy v. Thelenis et al(6))
Mr. Mahenthiran submits that the party who was not added in thiscase was the minor daughter of the respondent who was named andthat no prejudice will be caused because the same Counsel mighthave appeared for the daughter had she been made a party to theappeal and that in any event the decision against the daughter willbe the same as that against her mother, i am unable to agree withthis argument. The question is not whether the same Counsel mighthave appeared for the party who was not added or that the fate ofthe mother and daughter will be similar but whether the decision ofthis Court might adversely affect the interests of a person who isnot made a party.
Finally, Mr. Mahenthiran submitted that if it appeared to the Courtthat any person who was a party to the action in the Courts belowand who had not been made a party to the appeal, as interested inthe result of the appeal, the Court may adjourn the hearing to afuture date and direct that such a person be made a respondent.
That was done by the Court in the exercise of its discretionary powerin terms of section 770 of the Civil Procedure Code when some goodexcuse was given for non-joinder or when it was not very apparentthat the parties not joined might be affected by the appeal, or wherethe defect was not of an obvious character which could notreasonably have been foreseen and avoided. (E.g. See Ibrahim v.
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Beebeeetal, supra; Tambiahv. Sangarajahm Avichchy Chettiarv. Pereraw; Ramasamy Chettiarv. Mohamadu L ebbe Marika^; Francina Fernandov. Kaiya Fernando and others (10).
Mr. Samarasekera, P.C., however, submits that the Court no longer hasthat discretion under the prevailing laws and rules and that In any eventthere are no circumstances in this case warranting the granting of anyindulgence. We are in agreement with him.
For the reasons stated the appeal is dismissed with costs.
DHEERARATNE, J. – I agree
GOONEWARDENE, J. – I agree
Appeal dismissed.
RE GARUMUNIGE TILAKARATNE
SUPREME COURTFERNANDO, J.
AMERASINGHE, J. ANDDHEERARATNE, J.
S.C. RULE 1 OF 1990JANUARY 25, 1991.
Contempt-Art. 105(3)ofthe Constitution – News item contributed by reporter – Imputationpre-judging result of pending inquiry by Supreme Court into petition challenging Presidentialelection – Meaning of words – "Causing publication"-Reporter's responsibilities – "Intentionto publish"-Effect of words in context of speaker, place, occasion and place of publication- punishment.
The respondent, a reporter of the Divaina newspaper, sent a report of a speech madeby a Member of Parliament, at a party political meeting. The report was published almostverbatim. The M.P. was reported as stating that the pending inquiry by the Supreme Courtinto a petition filed by the leader of his party had already been decided and that if thepetitioner was not successful, that would be an end of justice in the country.
Upon a Rule being issued by the Supreme Court in the exercise of its jurisdiction underArticle 105 (3) of the Constitution to punish contempts of Court, the respondent pleaded"not guilty' on the following grounds:
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that the words were harmless and did not constitute an act of contempt;
that the words, having been uttered by a politician at a political meeting, wouldnot have been taken seriously by the readers;
that the article having been published on the second page amidst advertisementswould not have had a serious effect;
that he did not cause the publication, the responsibility for publication being thatof the editor, who had already accepted liability and had been punished forcontempt;
that he did not intend to publish the statement or to be disrespectful to the Courtor bring it into disrepute or to obstruct the Petitioner's case.
Held:
The words constituted an act of contempt.
Per Fernando, J: "The "clear implication" of the statement that if the petitionerdid not obtain the relief prayed for that would be the end of justice, is that "ifthe Court thought differently . . .that decision would be so unreasonable orperverse as to be a travesty of justice. The statement as a whole therefore notonly usurps the function of the Court, but is calculated to compel or influencethe Court to reject the respondent's case even before it is heard; it seeks toexert pressure on the Court to come to a decision favourable to one party andtends to affect witnesses who may be called to give evidence in future. It iscalculated to obstruct or interfere with the due course of justice . . ."
Per Amerasinghe, J; "The statement in question is an act of contempt becauseit involves an interference, or a likely interference, with the due administrationof justice, both in the particular case of the election petition, by interfering withpotential witnesses and by attempting to coerce the judges and, more generally,as a continuing process by suggesting that the Judges were prejudiced, and
thereby constitutes a challenge to the fundamental supremacy of the iaw
" what imputation, including any implication or inference, is conveyed by anyparticular words is to be determined by an objective test, that is by the meaningin which responsible readers of ordinary intelligence, with an ordinary man'sgeneral knowledge and experience of worldly affairs, would understand them,unfettered by any strict rules of construction. . ." "The rule against prejudgmentoperates even though there may be no risk of prejudice in the particular casebecause it is likely to produce escalating, unfavourable reactions in others." "Itis not permissible for anyone to pre-judge issues in pending causes and therebyventure to supplant the authority of courts . . .To permit others to arrogate tothemselves, the right to adjudicate upon matters that are before a court of lawwould be to place the very structure of ordered life, which depends upon thepacific settlements of law by courts of law, in jeopardy." "The law of contemptdoes not prevent the publication of genuine criticism and comment . . .I am ofthe view that the article in question is way beyond the permitted limits ofcomment. . ."
Although the context in which the words in question are relevant, including whothe speaker was, they were not harmless in the circumstances of this case.
Per Fernando,J; "With regard to learned President's Counsel's submission that,
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since the statement had been expressly attributed to the speaker who was aMember ol Parliament, 'the average reader" would "attach no value to if.■Undoubtedly the personality or position of the speaker, and the occasion onwhich he speaks, may be of some relevance; considerable licence may perhapsbe extended to those in the position of a Court jester of old, or of tender years,or mentally deficient persons, since the effect of their statements on the publicwould be minimal …" (I am not prepared) "to take judicial notice . . . that thepublic of Sri Lanka or the readers of the Oivaina consider politicians or any othercategory of persons to be either intrinsically untruthful or unreliable, or worthyof credit. Apart from Parliamentary privilege, politicians have no greater freedomof speech, and are subject to no less stringent restrictions thereon in regard tocontempt of Court, than other citizens."
Per Amerasinghe, J: "I agree . . .that, upon the application of the de minimisprinciple, (here can be no contempt of which a court would take cognizance ifthe obstruction or prejudice is not real but, rather, trifling, far fetched, remote ormerely theoretical and in that sense technical . . .As far as I can ascertain, thereis nothing in the decided cases supporting the proposition that, merely becausea statement comes from a politician at a political meeting, the dla minimis principleshould become automatically applicable. I am reluctant to accept the invitationto relegate the speeches of all politicians made at all political meetings to sucha lowly position."
The fact that the article appeared on the second page of the Daivina was of nosignificance.
Per Fernando, J: "The argument that the news item was published on the secondpage and would, despite its prominent headline, have escaped the attention ofthe average reader must be mentioned only to be rejected; that is at most onlya mitigating circumstance . . ."
Per Amerasinghe, J; . This may be a mitigating circumstance. But even onthe second page, it did present a real risk of prejudice . . ."
Although the editor had accepted full responsibility and had been convicted ofthe offence of contempt, the respondent, as reporter, "caused" the publicationand was, therefore, also liable.
Per Fernando, J: "The reporter who initiated the offending item is an essentiallink in the chain of causation, and cannot be regarded as too remote a cause.He causes the publication no less than the contributor of an article, subject toan exception in regard to reporters who play only a subordinate and mechanicalrole , . .* (having drawn a distinction based on Borne & Lowe's three types ofreporters. His Lordship held that", . .Here the news item, apart from the headline,is substantially the same as the report submitted by him and he is responsiblefor the finished product; that responsibility is not diminished by reason cf a fewfinishing touches put by the editorial blue pencil. During the preceding year, hewas not paid for submitting 250 reports, but only for what was published. Hetherefore caused the publication of the offending report".
Per Amerasinghe, J; "True enough, in the preceding year, only 35 of the 250 reportssubmitted by him had been made use of by the newspaper. Yet, the respondent's
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offending report, albeit one of the exceptional pieces he turned out, was actuallypublished in the newspaper. The reporter in this case did much more than supplyinformation: He was the author of the article and in every sense he was a partyto the publication . . .The activities of the respondent may not have been thecause of the contempt, but at least it was a concurrent cause. His activity inthis case, no less than that of the editor completed the causal explanation inthe action in question . . .The action of the editor in deciding to publish the reportof the respondent did not break the causal explanation . . ."
The fact that the respondent did not intend the publication or its meaning andconsequences was of no avail. The respondent did intend the publication.
Per Fernando, and Amerasinghe, JJ; on the facts of the case that the respondentdid intend the publication of the report.
Fernando, J held that although "intention to publish is a necessary ingredient,",yet, "To establish a charge of contempt it is not necessary to prove that therespondent intended a particular meaning or effect . . ."
Per Amerasinghe, J: "A person is not guilty of the offence of contempt unlessthere was mens rea with respect to each material element of the offence . . .".With regard to publication, this means that the respondent desired the publicationor that he was "heedless of the risk that publication was highly probable, or,having regard to his past experience that some of his contributions werepublished, that publication was a reasonable probability." With regard to themeaning and effect of the words, "it is not sufficient for a respondent to establishthat he had no intention to scandalize or to interfere with the course of justiceif it is established as a fact or inferred from the circumstances that his conductwas an antecedent but for which the result in question could not have occurredand that he foresaw or ought on account of his position to have foreseen thatthe result was at least a reasonable possibility . . . The respondent had nointention to prejudice the court or to obstruct or impede the administration ofjustice . . .he did not know that the statement he prepared might bring aboutthe consequences which in fact were brought about by the statement. However,
I hold that as a newspaper reporter with certain responsibilities, the respondentought, but failed, to have had the foresight to see that his report was likely tocause prejudice to the Court and the administration of justice as a continuingprocess. The respondent is, therefore, liable."
The Rule was made absolute but no punishment was imposed.
Per Fernando. J: "Considering the serious nature of the offence and that thelaw on this point has long been settled and is free of doubt, it is a matter forregret that the respondent did not even at the close of the argument,acknowledge his offence and tender an apology. However, as the editor hadalready accepted full responsibility, and considering the Respondent's indigentcircumstances, we refrained from imposing any punishment."
Per Amerasinghe, J: "It is because the protection of the due administration ofjustice and not the advancement of the interests of the Judges is the law ofcontempt that an apology to the Judges is irrelevant and of no avail in decidingwhether the actus reus of the offence has been established.’ The absence ofan apology would certainly be ’noticed". But is the apology made merely becausethe respondent is reduced to a situation of fear and humility? "Having regardto
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the fact that Contempt of Court is an offence purely sui generis and one that isvaguely defined; and taking account of the fact that the cognizance of the offenceinvolves in this case an exceptional interference with the fundamental right offreedom of speech and expression, including publication . . .and considering thefact that the respondent did not have the consequences of his act as a consciousobject of his conduct; and considering that, although as a reporter he had dutiesand responsibilities, yet his role in the publication was a comparatively subordinateone, no punishment is imposed on the respondent."
Cases referred to:
Re Armand de Souza (1914) 18 N.L.R 33, 38, 41, 45, 47
Re Hulugalle (1936) 39 N.L.R. 294, 303, 308 in fin.
Hewamanne I/.De Silva (1983) 1 Sri LR 1 34, 79, 107, 110, 111, 134 et. seg.41 156 – 161.
fl.V. Evening Standard (1954) 1 Q B 578 (1954) 1 All E.R. 1026.
R.V. Griffiths en P.A – (1957) 2 Q B 192, 202, 203.
R.V. Odhams Press Ltd. ex. P.A – G. (1957) 1 Q.B 73, 80 (1956) 3 All E.R. 494.
R. V. Grey (1900) 2 Q.B. 36
Reginald Perera V The King (1951) 52 N.L.R. 293 (P.C). (1951) A.C. 482.
St. James Evening Post Case (1742) 2 At. K. 469, 471.
Ex. P. Jones 1806 13 Ves. 237, 239.
McleodV. St. Aubyn (1899) A.C. 549.
Abdul Wahab V A.J. Perera (1936) 39 N.L.R. 475, 476.
A.G. Larapathy V. M.de Mel (1936) 6 C.L.W 148.
Jayasinghe V. Wijesinghe (1938) 40 N.LR. 68, 71.
Re Ratnayake (1938) 40 N.L.R. 99.
Veeraswamy V. Stewart (1941) 42 N.L.R. 481, 482.
A.G. V. Vaikunthavasan (1951) 53 N.L.R. 558, 564, 655.
R V. Peiris (1964) 68 N.L.R. 372, 373, 374.
Re S.A. Wickremasinghe (1954) 55 N.L.R. 511, 512, 513.
Miller V. Knox (1878) 4 Bing. N.C. 589.
Re Clement, Republic of Costa Rica V. Erlanger (1876) 46 L.J. Ch. 375, 385.
In re Maria Annie Davies (1888) 21 Q.B.D. 236, 239.
Greenwood V The Leather – Shod Wheel Co. Ltd. (1898) 14 T.L.R. 241.
R V Almon (1765) Wilmofs Notes 243, 270, Wilmots Notes 97 E.R. 94.
Kandaluwe Sumangala V. Mapitigama Dharmadutha et. al (1908) 11 N.LR 195,201.
R V. Davison (1821) 4 B & A 329, 333, 335.
In re Johnson (1887) 20 Q.B.D. 68, 74.
Johnson V. Lyrant (1923) 3 S.C. 789, 790.
A.G. V. Times Newspapers 1974 A.C. 273, 298, 301, 302, 304, 309, 322, 323.
A.G. V. Leveller Magazine Ltd. (1979) A.C. 440, 459.
Ex parte Fernandez (1861) 30 C.B.N.S. 3, 56 – 57; 1861 30 L.J.C.P. 321, 332.
flex V. Clarke (1910) 103 L.T. 636.
In re Jayatilaka (1961) 63 N.L.R. 282, 288.
In re Ragupathy (1945) 46 N.L.R. 297, 298, 299.
fl. V. Lady Lawley (1730) 2 Str. 904.
fl. V. Hall (1776) 2 W. Bl. 1110.
fl. V. Steventon (1802) 2 East 362.
fl. V. Loughran (1839) 1 C & D. 79.
fl V. Talley (1875) 82 C.C.C. 518
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Lewis V. James (1887) 3 T.L.R. 527
R. V. Gray (1803) 23 N.Z.L.R. 52.
Spurrell V. De Rechberg (1895) 11 T.L.R. 313.
LittlerV. Thomson (1939) 2 Beav 129, 131.
Schering Chemicals Ltd., V. Faikman Ltd. and others (1981) 2 all E.R 321, 339,348.
Vidyasagara V. The Queen 1963 A.C. 589 (1963) 65 N.L.R. 25 (P.C ;
New Statesman Case (1928) 44 T.L.R. 301.
R. V. Duffy, Ex P Rash (1960) 2 Q.B. 188.
Attorney-General V. B.B.C. (1981) A.C. 303, 342.
Vine Products V. Green (1965) 3 W.L.R. 791.
Davies, ex P. Delbert Evans (1945) 1 K.B. 442.
Attorney-General V. B.B.C. (1981) A.C. 303 , 335.
Hunt V. Clarke (1889) 58 L.J.Q.B. 490, 492.
In re Pall Mall Gazette, Jones V. Flower (1894) 11 T.L.R 122.
Grimwade V. Cheque Bank Ltd. (1897) 13 T.L.R. 305.
R. V. Tibbits (1902) 1 K.B. 77.
Birmingham Vinegar Brewery V. Henry (1894) 10 T.L.R 586.
R. V. Parke (1903) 2 K.B 4 32, 436 , 437.
In re Finance Union (1895) 11 T.L 167.
In re Tyrone Election Petition (1873) Jr. R. 7 C.L 242.
In re Montgomery Election Petition (1892) 9 T.L.R. 93.
In re Pontefract Election Petition (1893) 9 T.L.R 430.
Ambard V. Attorney-General for Trinidad and Tobago (1936) A.C. 322, 335.
Metropolitan Police Commissioner, ex p. Blackburn (1968) 2 Q.B 150, 155.
Re F.A. Capper and A.A. Capper Proprietor and Publisher of Times of Ceylon(1896) Browne 317, 319.
Chambers V. Hudson Dodsworth & Co. (1936) 2 K.B. 595.
Carl-Zeiss Stiftung V Rayner & Keeler Ltd., (1960) 1 W.L.R 1145.
A.G. (N.S.W) V. John Fairfax & Sons Ltd., (1980) 1 N.S.W.L.R 362, 367.
In the matter of the Rule on Armand de Souza (1914) 18 N.L.R. 41, 45, 47.
Anon. (1731) 2 Barn. K.B. 53.
Powis V. Hunter (1832) 2 L.J Ch-31.
Mathews V. Smith 1844 3 Hare 331.
In re General Exchange Bank. (1866) 12 Jur. (N.S.) 465.
In re London Flower Co. Ltd., (1868) 17 L.T. 636.
Vernon V. Vernon (1870) 40 L.J. Ch. 118.
Buenos Ayres Gas Co. V. Wilde (1880) 42 L.T. 657.
Metropolitan Music Half V. Lake (1889) 58 L.J. Ch. 513.
Lawrence V. Ambery (1891) 91 L.T. Jo. 230.
In re. Rochester Election Petition (1892) Times Dec. 9.
In re Evening News and Post (1892) Dec 9.
In re Martindale (1894) 3 Ch. 193.
In re. Cariain Newspapers, Duncan V. Sparling (1894) 10 T.L.R. 353.
Ex Parte Josfer (1894) Times, February 5.
In re £ Wilson Gates (1895) 11 T.L.R. 204.
Kelly & Co. V. Pole (1895) 11 T.L.R. 405.
Fielden V. Sweeting (1895) 11 T.L.R. 534.
R. V. Payne and Cooper (1986) 1 Q B. 577.
Fairclough V. Manchester Ship Canal Co. (1896) 13 T.L.R. 56.
In re Hooley, ex p. Hooley (1899) 79 L.T. 706.
Shaw V. India Rubber Co. Ltd. (1900) 44 Sol. Jo. 295.
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In re New Gold Coast Exploration Co. (1901) 1 Ch. 860.
Phillips V. Hess (1902) 18 T.L.R. 400.
In re Marquis Townshend (1906) 22 T.L.R. 341.
R. V. Daily Mail (1907) Times. Jan. 15.
Ex P. Starch (1910) Times. Feb. 10.
Dyce Sombre (1849) 1 Mac & G. 116, 41 E.R. 1209.
A-G V. Butterworth (1963) 1 Q.B. 722, 726.
S. V. Van Kiekerk (1970) S.A (3) 655.
Re O'Comer, Chesshire V. Strauss (1896) 12 T.L.R. 291.
R. V. Evening Standard Co. Ltd. ex p„ A-G (1954) 1 All E.R 1026.
R V. Thomson Newspapers, ex p. A – G (1968) 1 All E.R. 268
R. V. Bolam, ex p. Haigh (1949) 93 Sol. Jo – 220
Superintendent of Legal Affairs Bihar V. Murali Manohar (1941) 42 G.L Jul. 225.103. Gaskell and Chamber Ltd. Case (1936) 2 K.B. 595.
IN THE MATTER OF RULE under s. 105 (3) of ihe Constitution for Contempt of Court.
Sunil de Silva, P.C. Attorney-General with T. Marapone, P.C. Solicitor-General, K.C.Kamalasabayson, Senior State Counsel and F.N. Gunawardene, State Counsel insupport of the Rule.
Romesh de Silva, P.C. with Shantha Perera, Palitha Kumarasinghe, Miss SaumyaSamarasekera, H. Amarasekera and G. Gunawardena for respondent.
K.N. Choksy, P.C. with L.C. Seneviratne, P.C. and S.C. Crosette – Tambiah for 1strespondent in S.C. Election No. 1/89.
March 14, 1991.
FERNANDO. J.
The Respondent was charged with having unlawfully and improperlycaused the publication of a news item in the "Divaina" newspaperof 12.11.90, to the effect that Mr. Dharmasiri Senanayake, M.P., hadstated, in a speech made at Ambalankana, Aranayake, that thePresidential Election petition had already been proved and that if thepetitioner did not succeed it would be the end of justice in thiscountry: that these words contained an imputation that the allegationscontained in the aforesaid petition have already been proved and thatif the petitioner is denied success in that petition, it would amountto a total negation of justice in this country; and that the Respondenthad thereby committed a contempt of this Court punishable underArticle 105(3) of the Constitution. He pleaded not guilty.
The editor of the newspaper had previously pleaded guilty to acharge of contempt arising out of the same publication. In an affidavitfiled in these proceedings, he stated that he did so as he acceptedfull and sole responsibility for that publication. Both the editor andthe Respondent have explained the Respondent's position: in relation
SCRe. Garumunige Tilakaratne (Fernando, J.)141
to the newspaper and this particular publication. The Respondent isthe Aranayake correspondent of the "Divaina", but is not anemployee; he is paid on a piece-rate basis, and had, received anaverage income of Rs. 40/- per month during the preceding year:out of about 250 reports submitted by him, only 35 extracts orsummaries were published – less than Rs. 2J- per report, and lessthan Rs. 15/- per publication. His function was only to submitaccurate, factual reports of important events in his area, which hedid knowing and believing that defamatory and other offending matterwould be deleted by competent persons engaged for that purposeby the newspaper. It was claimed that such reports were confidentialand meant only for the Editorial staff, and were not meant forpublication though at the sole discretion of the Editorial staff anyreport may be published either in toto or part. In this instance, it iscommon ground that substantially the whole of the report waspublished, with the addition of a headline – "We too are ready forany election" and that the news item was attributed to the “Aranayakecorrespondent".
It is the Respondents position that the report (and the news item)was a true and accurate account of Mr. Senanayake's speech; therewere four supporting affidavits from persons who swore that theywere present at the meeting. If the report was false, that wouldincrease his culpability, but since the learned Attorney-General didnot seek to tender any evidence, oral or documentary, to establishthat this was a false report, it is unnecessary to consider, whetherthe report was false, and for the purpose of this case it will beassumed that Mr. Senanayake did utter the offending words.
It was submitted by learned President's Counsel for the Respondentthat the charge had not been established, for reasons which can besummarised as follows:
The Respondent's duty was only to transmit the report, and hehad performed no function in regard to its publication; he hadtherefore not "caused the publication" of the offending passage,and it was the editor, and/or the Editorial staff, and/or otheremployees, who had caused the publication;
The Respondent had no intention either of publishing theoffending passage, or of causing any prejudice to the pendingPresidential Election petition;
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Even if the words uttered by Mr. Dharmasiri Senanayakeconstitute a contempt, yet the news itpm expressly attributedthose words to him; he was a politician, holding the office ofAssistant Secretary of the Sri Lanka Freedom Party, whoseleader was the petitioner in the Presidential Election petition;those words had been uttered in the course of a political speechmade at a meeting of his political supporters, for politicalpurposes or as political propaganda; the effect of the words inregard to the pending litigation had to be determined by referenceto the ordinary or average reader of the "Divaina"; such readerwould not believe or attach importance to a political speech madein those circumstances; it would therefore have no effect on thepending litigation. Further, the article in question was publishedon the second page, which mainly contained advertisements, andmost readers, even if they did look at that page, would not haveread the entire article.
Re de Souza. (1), Re Hulugalle (2), Hewamanne V. de Silva
, R V Evening Standard^4), R V Griffiths (5) and R V OdhamsPress Ltd (6) were cited in support.
The offending words are clear and unambiguous. They mean thatin the pending Presidential Election petition (even before thecommencement of the case of the respondent) the petitioner'sallegations have been established. It is the constitutional power, dutyand function of the judiciary (in this case, of the Supreme Court) todecide whether a litigant has established his case. Even though itmight be permissible in some circumstances for a litigant to expressa view as to the merits of his case, others are certainly not entitledto give public expression to such opinions. But in this case it hasalso been said that if the petitioner did not obtain the relief prayedfor, that would be the end ofjustice- the clear implicationisthat if
the Court thought differentlyat theend of the case thatdecision
would be so unreasonable or perverse as to be a travesty of justice.The statement as a whole therefore not only usurps the function ofthe Court, but is calculated tocompelor influence the Courttoreject
the respondent's case evenbeforeit is heard; it seekstoexert
pressure on the Court to come- to a decision favourable to one party,and tends to affect witnesses who may be called to give evidencein the future. It is "calculated to obstruct or interfere with the duecourse of justice" (R V Grey, (7); Perera /The King (8).To intimidate
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by words is no less serious than to intimidate by force. Trial mustbe by Judges and tribunals empowered by law to administer justice,and not by Members of Parliament, politicians, newspapers, or others;pending litigation must be free from criticism or comment that mayaffect its due adjudication, although much greater latitude is permittedthereafter (Borrie & Lowe, Law of Contempt, 2nd edition p. 55).
Did the Respondent “cause the publication" of the offendingwords? Particularly because sole responsibility has been acceptedby the editor, learned President's Counsel argued that it was theeditor and other employees who decided whether or not the newsitem should be published, and therefore that it was they whopublished and/or caused the publication of the news item; theRespondent was no more than a conveyor of information, andhad no control over publication. He conceded, however, that ifthe editor decided to publish an article or a letter to the editor,the contributor thereof could properly be said to have “causedthe publication" even though publication was entirely in theeditor's discretion. It is settled law that the chain of causationextends to the author of the offending item; even employees whoperform ancillary or mechanical functions unconnected with thecontents of the offending item have been held liable, despite theabsence of knowledge of such contents. Thus in the St. JamesEvening Post case (9), and in Ex p. Jones, (10), the printer ofthe offending publication was held liable despite ignorance of thecontents. The reporter who initiated the offending item is anessential link in the chain of causation, and cannot be regardedas too remote a cause. He causes the publication no less thanthe contributor of an article, subject to an exception in regard toreporters who play only a subordinate and mechanical role:
"First, there is the reporter whose sole responsibility is togather and collect all the available information on a particulartopic, but who will neither be expected to appreciate thesignificance of such information nor bear any responsibility forthe final publication. Second is the type of reporter who beingexperienced, will not only be expected to appreciate thesignificance of the information, but whose reports will bepublished more or less as they stand. Third is the reporterwho is not only responsible for collecting information, but whowill also write the whole article himself."
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"The first reporter cannot be considered to be guilty since hewill lack the necessary mens rea – he cannot be said tointend to publish the information otherwise than to the editorand neither will he have committed the actus reus, since hecannot be said to have published the information nor to havecaused it to be published; for he bears no responsibility forthe final publication." (Borrie and Lowe, Law of Contempt, 2ndedition, p. 260).
The distinction is between the unskilled worker who merelycollects the essential raw materials, and the craftsman whocreates the finished product using those materials. The Griffithscase is an example of the first category, where the reportertook no part in the preparation of the offending article; hemerely collected items of news in London and sent them toNew York where it was decided what, if any, use was to bemade of them; the article was written in New York. TheEvening Standard and the Odhams Press cases areexamples of the second and third classes. If the Respondenthad been engaged in gathering information as to the viewsof members of the public and public figures in regard to, forinstance, litigation, for the purposes of an article to be writtenby another, the fact that the article contained portions of thematerial collected by the Respondent would probably have puthim into the first category. Here the news item, apart from theheadline is substantially the same as the report submitted byhim, and he is responsible for the finished product; thatresponsibility is not diminished by reason of a few finishingtouches put by the editorial blue pencil. During the precedingyear, he was not paid for submitting 250 reports, but only forwhat was published. He therefore caused the publication ofthe offending report. 2
2.Then it is said that the Respondent lacked the intention to publishthe offending words and to cause any obstruction or prejudiceto pending litigation. The first limb of this submission is notborne out by the facts, and the second is clearly untenable inlaw. The Respondent submitted reports not merely in the hopebut with the object of publication, in whole or in part; may be, itwas only a pittance that he received for his labours, butpublication was his aim. The fact that he did not know this reportwould be published, or that he considered the probability ofpublication to be low does not detract from his intention and
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desire that it be published. It was urged that the report wasconfidential and intended only for the editorial staff, but this iscontradicted by the fact that payment was not for what wassubmitted, but only for what was published. Intention to publishis a necessary ingredient: thus a Barrister who lent a copy of anewspaper, without knowledge of its offending contents, was heldnot guilty of contempt because he never intended to publish(McLeod v St Aubyn. (1899) A.C. 549). The Respondent didintend to publish the report. The fact that he had no intentionwhatever "of causing disrepute or disrespect to the SupremeCourt or any Court and/or of causing any obstruction to theElection Petition case" is irrelevant, because all that is requiredis that the publication, viewed objectively, is "calculated" toobstruct or interfere with the due course of justice", and this hasbeen laid down in a stream of previous decisions (Wahab vPerera1'2)', A.G. v Laxapathy<13) Jayasinghe v Wijesinghe (14) ;Re Ratnayake (,5) ; Veeraswamy v Stewart <1B> ; A.B. vVaikunthavasan (17); R v Per/'es(18).)
To establish a charge of contempt it is not necessary to provethat the Respondent intended a particular meaning or effect;intention is not an ingredient, though often an aggravatingcircumstance, relevant to punishment. 3
3.Finally, learned President's Counsel submitted that despite theobjectionable nature of the words themselves, their effect on theaverage reader of the "Divaina” had to be ascertained accordingto the principles laid down in the three local decisions cited byhim; since the statement had been expressly attributed toMr. Senanayake, such reader would attach no value to it, in thecircumstances referred to earlier; and therefore the statementwould have no effect whatsoever on the pending litigation; if,however, the statement had been made by a retired Judge ofthis Court or by a Professor of Law, the position would havebeen entirely different. When reminded that Mr. Senanayake wasdescribed as the Assistant Secretary of the Sri Lanka FreedomParty, Counsel replied that high office did not result in greatercredibility so far as politicians were concerned. This led him intoall sorts of difficulties; if the statement had been made by thepetitioner herself, or if the converse had been stated by therespondent, would it have had no effect on the reader ? If it hadbeen made by a practising lawyer, or a politician-cum-lawyer, or
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a retired Judge now engaged in politics, how would its effect onthe reader be assessed? Naturally, no clear answer wasforthcoming. There is neither precedent nor justification forassessing an impugned statement in this way. Undoubtedly thepersonality or position of the speaker, and the occasion on whichhe speaks, may be of some relevance; considerable licence mayperhaps be extended to those in the position of a Court Jesterof old, or of tender years, or mentally deficient persons, sincetheoeffect of their statements on the public would be minimal.Apart from such exceptional cases, I do not think that anycategory of adults of sound mind can be granted such anextensive privilege of making, with impunity, statements prejudicialto pending litigation. Nor am I prepared to take judicial notice ofa sweeping proposition that the public of Sri Lanka, or thereaders of the "Divaina", consider politicians or any othercategory of persons to be either intrinsically untruthful orunreliable, or worthy of credit. Apart from Parliamentary privilege,politicians have no greater freedom of speech, and are subjectto no less stringent restrictions thereon in regard to contempt ofCourt, than other citizens. The decisions of this Court, in thisbranch of the law of Contempt, have never granted or recognisedany such privilege or immunity of politicians. Jayasinghe vWijesinghe dealt with a notice of a meeting to be held underthe presidentship of a Member of the State Council. In ReRatnayake an Advocate-cum-State Councillor was found guilty butdischarged with a warning where he had (in his capacity as anordinary citizen) written to a Judge informing him that a party toa pending case, against whom a warrant had been issued forfailure to appear on summons, was in a delicate state of health,and requesting a postponement:
"the contempt is not a serious one, but it amounts to anattempt to influence the Judge upon a matter publicly beforehim, and it is very necessary, in my opinion, that (it) shouldbe the subject of judicial action, and it is of greater importancein this particular case where the respondent is not only anAdvocate but is a Member of the State Council. Persons inthe position of the respondent must be made to realise thatthey cannot interfere in the course of justice, and that if theydo so interfere, or attempt to interfere, they will be punished."
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The rationale for this view appears from Wahab v Perera (12) :
"This, we understand, is the first case of its kind that hasoccurred in the Island. We hope that it will be a very longtime before there is another. The people of this country havetravelled far along the road which leads to the managementof their own affairs . . . and must realise that these peoplewho have the privilege of making the laws which govern themhave also the stern obligation of obeying those laws."
A politician was also found guilty of contempt of court in ReWickremasinghe (19), and this Court had no doubt that at leastsome listeners might be convinced by him:
"the object of this branch of the law, of course, is not theprotection of the personal reputation of judges but theprotection of the authority of the courts, which must bepreserved in the interests of the community. It is therefore noless an offence to scandalise the judiciary generally than toscandalise the judge or judges of a particular court. No personwho may have been persuaded by the respondent's speechto accept the views he expressed about the judiciary couldcontinue to have confidence in the impartiality of the courtsof justice."
In Hewamanne v de Silva, (3) the decision turned principally on thequestion whether the publication of a notice of motion contained inan Order Paper of Parliament was protected by the cloak ofParliamentary privilege, and the majority thought it was not; however,the resolution, the contents of which were held to constitute acontempt of this Court, was to have been moved by the Minister ofJustice, but the Court did not consider that this opinion of a politicianwould have such little effect on the public that it would not constitutea contempt.
Freedom of speech and expression is important, but is not absolute.The public interest requires that the Judiciary must discharge itsfunctions, free of bias, partiality, force, or other public or privateinfluence, thereby ensuring that every dispute will be resolved by afair trial according to law. This branch of the law of contempt seeksto balance the citizen's freedom of speech and the public interest in
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the resolution of disputes by independent judicial adjudication. In thatcontext there is no place for trial by politicians, the media, hoodlums,or others, and the law of contempt thus prohibits comments andcriticisms which will affect the fairness of a trial or usurp the powerof the Judiciary; the Constitution and the law do not allow politiciansany greater immunity or licence than the ordinary citizen (except asprovided by the law relating to Parliamentary privilege).
The argument that the news item was published on the second pageand would, despite its prominent headline, have escaped the attentionof the average reader must be mentioned only to be rejected; thatis at most only a mitigating circumstance. In the result, theRespondent's third contention fails.
For these reasons, at the conclusion of the proceedings, theRespondent was found guilty of contempt of this Court, and the Rulewas made absolute. Considering the serious nature of the offence,and that the law on this point has long been settled and is free ofdoubt, it is a matter for regret that the Respondent did not, even atthe close of the argument, acknowledge his offence and tender anapology, However, as the editor had already accepted fullresponsibility, and considering the Respondent's indigentcircumstances, we refrain from imposing any punishment.
DHEERARATNE J: I agree
AMERASINGHE J:
I have had the advantage of reading the judgment of my brotherFernando, J. in draft form and I agree that the rule must be madeabsolute but that no punishment shall be imposed.
A Bench of the Supreme Court, in the exercise of its jurisdictionunder Article 130 of the Constitution, is currently engaged in hearinga legal proceeding relating to the election of the President of SriLanka. During that hearing, on 12 November 1990, the Divainanewspaper reported, under the headline "We too are ready forelection", that Mr. Dharmasiri Senanayake, a member of Parliament,had made a speech at Anbalankana, Aranayake, in which he hadstated that the case of the petitioner had already been proved, andthat if the petitioner did not succeed, it would be the end of justicein the country.
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The respondent who reported that speech is charged in this case,in the exercise of the jurisdiction conferred on the Supreme Courtby Article 105 (3) of the Constitution to punish for contempt of itself.
Contempt of Court as Joseph Moskovitz (Contempt of Injunctions,Civil and Criminal, 1943 43 Col. L.R.780) observes, is the Proteusof the legal world assuming an almost infinite diversity of forms.Contempt of Court, which has been irreverently termed a legalthumbscrew, is so manifold and so amorphous that it is difficult tolay down any precise definition of the offence (See Oswald, Contemptof Court, 1910 3rd Ed. by G.S. Robertson at P. 5; Cf. GlanvilleWilliams, Textbook of Criminal Law, 1983, 2nd Ed. p. 16, Miller vKnox (20) per Williams, J.)
Because the offence of contempt is amorphous and has nodeterminate shape or structure and is virtually unrestrained in the willof the Court, the jurisdiction to punish for contempt given by Article105 (3) of the Constitution ought to be jealously and carefullywatched and cautiously exercised with the greatest reluctance andthe greatest anxiety (Cf. per Jessel, M.R. in Re Clements, Republicof Costa Rica v Erlanger (21); In Re Maria Annie Davies <22); perSterling, J. in Greenwood v The Leather-shod Wheel Co. Ltd. (23)
What is the offence of Contempt of Court? In Miller v Knox (supra)at p. 588, it is said to be disobedience to the Court, an opposingor a despising the authority, justice, or dignity thereof. It commonlyconsists in a party's doing otherwise than he is enjoined to do, ornot doing what he is commanded or required by the process, order,or decree of the Court."
In the St. James Evening Post case (9) Lord Hardwicke, L.C. saidthat "There are three different sorts of contempt. One kind ofcontempt is scandalizing the Court itself. There may be likewise acontempt of this Court, in abusing parties who are concerned incauses here. There may be also a contempt of this Court, inprejudicing mankind against persons before the cause is heard."
Lord Radcliffe in delivering the decision of the Privy Council inReginald Perera v The King (8) said that for such an act of contemptas in the case before us to be committed "There must be involvedsome act done or writing published calculated to bring a Court or
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Judge of the Court into contempt or to lower his authority orsomething calculated to obstruct or to interfere with the due courseof justice or the lawful process of the Court."
Oswald (Contempt of Court, 1910 3rd Ed. by G.S. Robertson) at p.10said that "To speak generally, Contempt of Court may be said tobe constituted by any kind of conduct that tends to bring the authorityand administration of the law into disrespect or disregard, or tointerfere with or prejudic parties litigant or their witnesses during thelitigation." This definition was adopted in 1959 by the report of thecommittee of Justice on the subject of Contempt of Court under theChairmanship of Lord Shawcross at p.4 as being one the committeecould not improve on.
Article 105 (3) of the Constitution gives the Supreme Court all thepowers of a superior court of record including the power to punishfor contempt of itself whether committed in the Court itself orelsewhere. The complaint here is not that there was a direct act ofcontempt committed ex facie curiae but that there was an indirect,constructive contempt committed outside the Court by the publicationof a statement about a matter that is pending before the SupremeCourt.
The statement in question is said to be an act of contempt becauseit involves an interference or likely interference with the dueadministration of justice, both in the particular case of the electionpetition and, more generally, as a continuing process, and therebyconstitutes a challenge to the fundamental supremacy of the law. Itis in the public interest that Article 105, through the power it conferson the Court to punish for contempt, ensures the fairness of particulartrials and the continuing authority of the Court. In R v Almon (24) itwas said that the power of punishing for contempt has been givento the Courts “to keep a blaze of glory around them, and to deterpeople from attempting to render them contemptible in the eyes ofthe public." This does not mean that it is a power given, asWoodrenton, C.J. explained in Kandaluwe Sumangala v Mapitigama.Dharmadutta et al. (25) for the “glorification of the Bench" but rather"solely for the benefit of the public”. This, Woodrenton, C.J. said, isa fact of “vital importance", although "extremely difficult to bring hometo the minds of some people." (Cf. Re Wickramasinghe, (19) at perGunasekera, J.R v Davison (16). In re Johnson (27) per Bowen, L.J.Johnson v Grant, (28); A-G v Times Newspapers (29); A – G vLeveller Magazine Ltd (30).
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In Ex parte Fernandez (3') Willes, J. expressed the principles onwhich the jurisdiction is to be exercised in the following admirable,terms: "We have been urged to be careful of being misled by ourown way of thinking, in the decision of this case, because, as it wassuggested, our privileges are involved in the question. As that coursehas been adopted. I take leave to say that I am not conscious ofthe vulgar desire to elevate myself, or the Court of which I may bea member, by grasping after a pre-eminence which does not belongto me; and that I will endeavour to be even valiant in preservingand handing down those powers to do justice and to maintain truth,which, for the common good, the law has intrusted to the Judges."
In the same case, but as reported in 30 L.J.C.P. 321 at p. 332, Erie,C.J. said: “There are many ways of obstructing the Court.Endeavours are not wanting either to disturb the Judge or toinfluence the jury, or to keep back or pervert the testimony ofwitnesses, or by other methods according to the emergency of theoccasion to obstruct the course of justice. These powers are givento the Judges to keep the course of justice free; powers of greatimportance to society, for by the exercise of them law and orderprevail; those who are interested in wrong are shown that the lawis irresistible. It is this obstruction which is called in law contempt,and it has nothing to do with the personal feelings of the Judge,and no Judge would allow his personal feelings to have any weightin the matter. According to my experience, the personel feelings ofthe Judges have never had the slightest influence in the exerciseof those powers entrusted to them for the purpose of supporting thedignity of their important office; and so far as my observation goes,they have been exercised for the good of the people."
Lord Cross of Chelsea in A. – G v Times Newspapers (29) said;"Contempt of court means an interference with the administrationof justice and it is unfortunate that the offence should continue tobe known by a name which suggests to the modern mind that itsessence is a supposed affront to the dignity of the court. Nowadayswhen sympathy is readily accorded to anyone who defies constitutedauthority the very name of the offence predisposes many people infavour of the alleged offender. Yet the due administration of justiceis something which all citizens, whether on the left or the right or inthe centre, should be anxious to safeguard."
It is because the protection of the due administration of justice and
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not the advancement of the interests of the Judges is the concernof the law of contempt that an apology to the Judges is irrelevantand of no avail in deciding whether the actus reus of the offence hasbeen established. In The Attorney-General v Vaikunthavasan (,7)Basnayake, J. said: "There appears to be an impression that anapology to the Court erases the effect of a contempt of this nature.In order to remove that impression I wish to repeat here the wordsof Darling, J. in Rex v Clarke (32): "It is not to the Court that anapology can do any good. Apology is due to the person whose trialmight have been prejudiced, and the public whose interest it is tosee that justice is fairly administered in this case, and not to theCourt which has no feeling in the matter." When the Court imposesa punishment for contempt, it does so, as Abrahams, C.J. said inthe matter of the rule on Hulugalle (2), "in the interests of the public.”
An explanation that there was no ulterior intention to interfere withthe course of the administration of justice, and an unreservedwithdrawal of the insinuations and an expression of regret, eventhough belatedly made (see In the matter of the rule on DeSouza (1)), however, will be relevant, after determining culpability, indeciding the question of punishment. Moreover, the absence of acustomary apology to the Judge may, as in re Jayatilake (33) perTambiah, J. be regretted as showing a lack of courtesy. (See alsoper Keuneman, S.P.J. in re Ragupathy (34); per Gunasekera, J. in reWickramasinghe <19) where the expressions of regret were notregarded as "sufficient" for the offence committed in those cases).Its absence would certainly be noticed. (E.g. see in the matter ofHulugalle (2)). But that is another matter.
In this connection it might be observed that the jurisdiction of theCourt should be exercised with care, for, as Oswald, (op cit. pp. 17- 18) observes, "the defendant is usually reduced, or pretends to bereduced, to such a state of humility, in fear of more severeconsequences if he shows any recalcitrancy, that he is either unableor unwilling to defend himself as he might have otherwise done."
What do the words complained of mean? In ascertaining the meaningof statements published in newspapers, as in the case before us, Iwould, with respect, follow the guidelines proposed by Woodrenton,C.J. in the case or Armand de Souza (1). They were guidelinesfollowed by Abrahams, C.J. in the matter of the rule on H.A.J.Hulugalle <2> and by Keuneman, S.P. J. in the matter of a rule on
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Ragupathy (3<l Woodrenton, C.J. said: “The Court has itself tointerpret the meaning of the language used, and in doing so considerhow it will be understood by the majority of those whom it reached.It was published in a daily newspaper. It is clear that the readersof such an article as this would not stop to subject it to the minuteanalysis which it received at the Bar, or to consider how far thecharacter of the warp of one line of criticism was modified by woofof a different texture. They would read the article as such articlesare read every day by ordinary people who have no time, even whenthey have the capacity, to carry out such a process of balancing,and who would be guided in the long run by the general impressionwhich the article left in their minds." If, with respect, I might amplifywhat Woodrenton, C.J. was saying, I would suggest that whatimputation, including any implication or inference, is conveyed by anyparticular words is to be determined by an objective test, that is, bythe meaning in which reasonable readers of ordinary intelligence, withan ordinary man's general knowledge and experience of worldlyaffairs, would understand them, unfettered by any strict legal rulesof construction. The imputation convered is not necessarilydetermined by the meaning which the majority of the readers of theDivaina understood them. Nor is the imputation to be determined bywhat Mr. Senanayake, the reporter or the editor intended.
Applying that test to the language before us, it seems to me thatthe article in question means that the Judges in the proceedingbefore the Court had already made up their minds. At the relevanttime the respondent had not yet led his evidence. What would themajority of people who read that article have thought? I think theywould have thought it of little or no use to say anything more in thecase. Some of them who were potential witnesses might haveconsidered it futile to testify and might, therefore, have been deterredfrom coming forward to give evidence. This would prevent therespondent in the matter pending before the Court from pursuing afull presentation of his case. Deprived of all the relevant evidence itmight have otherwise considered, the Court would be impeded inconducting a fair proceeding. The statement, therefore, interferes withthe administration of justice.' Any act which interferes or attempts tointerfere with witnesses, whether it be by threat, persuasion orotherwise, inteferes with the course of justice and is a contempt ofcourt. (Cf. R v Lady Lawley t35’; R v Hal! (36); R v Steventonon; fi v Loughran (38); R v Ta!ieym ; Lewis v James (,W); In re
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to Johnson (27). R v Gray1411 ; Oswald, op. cit. 7, 52 and 89;) Bothin Spurrell v De Rechbery^ and in Greenwood v The Leather-shodWheel Co. Ltd. (23) statements which were held to have been likelyto have deterred witnesses from giving evidence were thereforeregarded as acts of contempt. As Lord Langdale M.R. said in Littlerv Thomson (43): "if witnesses are . . . deterred from coming forwardin the aid of legal proceedings it will be impossible that justice canbe administered. It would be better that the doors of the courts ofjustice were at once closed."
On the other hand, in the hope that their evidence may retrieve theposition, other witnesses may, in their, albeit mistaken, enthusiasmtend to exaggerate their evidence, with equally unsatisfactory resultsfor the particular case and for the administration of justice in general.In Abdul Wahab v A.J. Perera et al. (12), pending a criminal chargeagainst a person, the respondents in a leaflet had suggested thatthe accused was guilty of the offence with which he was charged.Abrahams, C.J., after reflecting upon the likely effect of the statementupon jurors, said that “in a more suitable way possible witnessesfor the prosecution and the defence may be in the one caseinfluenced to exaggerate their evidence and in the other actuallydeterred giving it."
With regard to the possibility of exaggeration, however, one may,perhaps, derive some comfort from the assuring words of Shaw, L.J.in Schering Chemicals Ltd. v Falkman Ltd . and others (44). HisLordship said: "Witnesses in an action are credible and reliable orthey are not. Our system of trial in which evidence is elicited byexamination and cross-examination provides them means ofdemonstrating the character and quality of a witness." In thecircumstances of that case, the suggestion that prospective orpotential witnesses may be deterred or discouraged from contributingtheir testimony was regarded by Shaw, L.J. at p. 339 as being"insubstantial”.
In the case before me, however, I am satisfied that the statementthat the petitioner's case had been already established would tendto hold back witnesses who were prepared to say from their actualknowledge what was at variance with or in contradiction of thepetitioner's case. There was, therefore, an interference with theadministration of justice and, consequently, an act of contempt.
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The result of the matter proceeding before the Court, it was allegedin the statement in question, was evident even before the respondenthad submitted his case. If, in such circumstances, the Judges hadalready made up their minds, they could have done so only if theyhad been biased. What other meaning could be reasonably givento the words by the majority of readers? Would such statement notdiminish the confidence of the public in the Judges in the case beforethe Court as well as in the administration of justice as a continuingprocess? For what should the public think of and come to expect ofbiased judges who make up their minds before hearing both sides?In The Road to Justice (1955 p. 73 Sir Alfred Denning (as he thenwas) said: "The judges must of course be impartial. If they shouldbe libeled by traducers, so that people lost faith in them, the wholeadministration of justice would suffer."
There has never been any doubt that imputing unfairnes, bias or lackof impartiality to a Judge in the discharge of his judicial duties lowershis authority and interferes with the performance of his judicial dutiesand therefore constitutes an act of contempt. (E.g. see in reWickramasinghe(19) per Gunasekera, J. : In the matter of Armandde Souza (1) ; Vidyasagara v The Queen (45) Hewamanne v deSilva (3) per Wanasundera, J. at pp. 78 – 107 and per Ranasinghe,J. at pp. 134 et seq New Statemsman case (46). Such statementwould, as Wilmot. J. observed in Almon's Case, excite in the mindsof the people "a general dissatisfaction with all future determinationsand indispose their minds to obey" the Judges. Such statementswould, as Wilmot, J. said, “taint the fountain of justice so thatjudgments which stream out of that fountain would be regarded asimpure."
The statement in question also asserts that if the petitioner isunsuccessful, there would be an end of justice. The relevant sort ofreaders, I think, would regard this is as a kind of ultimatum. If thepetitioner's prayer is not answered, it would be on pain of unpleasant,ill-boding, and perhaps even fearful and dire, consequences. Thereis an undoubted attempt to coerce the Judges.
Judges, though in no sense superhuman are by training supposedto have no difficulty in putting out of mind matters which are not inevidence in a case. (Cf. per Lord Parker, C.J. in R. v Duffy, ex p.Nash(47). In Attorney-General v B.B.C. m Lord Salmon at p. 342 said:
"I am and have always been satisified that no judge would be
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influenced in his judgement by what may be said by the media. Ifhe were, he would not be fit to be a judge. "And Lord Reid inAttorney-General v Times Newspapers (29i that “it is scarcelypossible to imagine a case when comment could influence judgesin the Court of Appeal or noble and learned Lords in this House. InVine Products v Green <48> Buckley, J. held that the article inquestion did not raise a serious risk of prejudice and that there wasno contempt in that case. In Schering Chemicals v Falkman Ltd(44)Shaw, L.J. at p. 339 said: "I cannot see that the fair trial of theissues in the pending actions would be in any way hampered oradversely affected if the programme were shown. The trial is to beby a judge alone; it is safe to assume he will not be improperlyinfluenced in any way should he see the programme or read themanuscript."
However, in Attorney-General v Times Newspapers (supra) a majorityof their Lordships concurred in the view that the article was aprejudgment of the case, and so, technically a contempt, althoughnot one worthy of punishment. And Humphreys, J. in Davies ex p.Delbert-Evans (50) expressed the view that it was wrong to publishmatter which might embarrass a judge and make it more difficult forhim to do his work. Moreover the view that Judges are not ever likelyto be influenced by the comments of other persons and that,therefore, there is no risk of prejudice, is by no means, free fromdoubt. Thus in Attorney-General v B.B.C. (57> Viscount Dilhorne at p.335 said: “It is sometimes asserted that no judge will be influencedin his judgment by anything said by the media and consequently thatthe need to prevent the publication of matter prejudicial to the hearingof a case only exists where the decision rests with laymen. Thisclaim to judicial superiority over human frailty is one that I find somedifficulty in accepting. Every holder of a judicial office does his utmostnot to let his mind be affected by what he has seen or heard orread outside the court and he will not knowingly let himself beinfluenced in any way by the media, nor in my view will any laymanexperienced in the discharge of judicial duties. Nevertheless it should,
I think, be recognized that a man may not be able to put that whichhe has seen, heard or read entirely out of his mind and that he maybe subconsciously affected by it."
Woodrenton, J. in Kandoluwe Sumangala v Mapitigama Dharmarakittaet al (25) said “It is of the highest importance that while causes are
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testimony of witneses, or which could create any adverse and unjustimpression upon the Court. I need scarely point out that the latterconsideration applies whether the cases are to be tried by juries orby Judges. For every one who has exercised judicial office knowsthat it is extremely difficult to keep the mind clear from misconceptionand free from prejudice, if by some mischance the Judge has heardprivate or public gossip in regard to, or irresponsible comment upon,the case he has to decide."
I am of the view that the statement in the report attempting to coercethe judges tended to interfere with the due course of justice and wastherefore an act of contempt. What is relevant is not the fact thatthe judges will be actually or probably prejudiced, but that the natureof the statement was such that prejudice might result. In Hunt vClarke (52) (followed by Roch, J. in Jayasinghe v Wijesinghe (4),Cotton, L.J. said: "It is not necessary that a Judge or jury will beprejudiced, but if it is calculated to prejudice the proper trial of causethat is a contempt and would be met with the necessary punishmentin order to restrain such conduct" (Cf. also per Soertsz. J. inVeerasamy v Stewart(16) ; In re Pall Mall Gazette, Jones v Flower{53); Grimwade v Cheque Bank Ltd.(54).
In sum, the statement in the Divaina of 12 November, 1990, has atendency to produce an atmosphere of prejudice in the midst ofwhich the proceeding in the matter of the election petition must,regrettably, go on, and in that way, it tends to interfere with a fairtrial of the case. (Cf. per Lord Alverstone, C.J. in R v Tibbits (55)followed by Soertsz, J. in Veerasamy v Stewart(,6).) The statementalso tends to interfere with the administration of justice as acontinuing process.
It was suggested by learned President's Counsel for the respondentthat sometimes certain persons, particularly litigants, prematurelyclaim victory for one party. To do so in this case would be to usurpthe functions of the Court for it is the Supreme Court alone whichis, in terms of Article 130 of the Constitution, entitled to determineand make orders on a proceeding relating to the election of thePresident. Trial by newspaper or trial by any other medium than thecourts of law cannot be permitted. (See Birmingham Vinegar Breweryv Henry(56); R v Parke (S7>. In re Finance Union (58). Thus prejudgmentin a proclamation (Kandoluwe Sumangala v Mapitigama et a!.(25) ornotice (Javasinqhe v Wiiesinghe(14); Abdul Wahab v A.J. Perera
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et ai('2) or a notice followed by a public meeting (A- G vM. de me! Laxapathy <13) would be actionable as a contempt of court.In Kandoluwe Sumanagala v Mapitigama Dharmarakitta et al (supra)Woodreriton. J. at p. 201 said: "It is of the highest importance thatwhile cases are still undecided, nothing should be said which couldinfluence the testimony of witnesses or which could create anyadverse and any unjust impression upon the mind of the Court."
This principle applies to election petitions as well as to other cases.Thus in re Tyrone Election Petition,(59) (cf also In re MontgomeryElection Petition (60) and In re Pontefract Election Petition), (62) duringthe pendency of an election petition, the proprietor of a newspaperpublished in his journal a series of articles calculated to interfere withthe course of justice and to prevent witnesses affording him theirevidence. It was held that the publication was a contempt of the IrishCourt of Common Pleas.
Whether in a given case the discussion or comments upon a pendingcase are unseemly or harmful to the administration of justice, willdepend upon the circumstances. Each case, as Templeman, L.J.observed in Schering Chemicals v Faikman Ltd (44) at p. 348 mustbe judged on its own merits.
One thing, however, applies to all cases. It is not permissible foranyone to pre-judge issues in pending causes and thereby ventureto supplant the authority of courts of law which have beenestablished for the pacific settlement of disputes and the maintenanceof law and order in Sri Lanka. Why?
It is in the interests of litigants that this should be the case. As LordMorris observed in A – G v Times Newspapers (29): "The courts, Ithink, owe it to the parties to protect them either from prejudices ofpre-judgment or from the necessity of having themselves toparticipate in the flurries of pre-trial publicity” Trials by newspapersor any other medium lack the safeguards that are expected by theparties to be found in legal proceedings such as those provided byrules of procedure, including the right to reply or cross-examine, andthe rules of evidence, including the exclusion of hearsay evidence.Trials by newspapers and other media, deprive the parties of havingtheir causes determined impartially and with reference solely to thefacts judicially brought before a tribunal. The tendency of a mediatrial is, as Wills, J. put it in R v Parke <57), is "to reduce the court
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which has to try the case to impotence, so far as the effectualelimination of prejudice and prepossession is concerned."
Looking beyond the particular case, one has to consider the longterm effects of the statement on the administration of justice. Topermit others to arrogate to themselves the right to adjudicate uponmatters that are before a court of law would be to place the verystructure of ordered life, which depends on the pacific settlement ofdisputes by courts of law, in jeopardy. (Cf. per Lord Morris inAttorney-General v Times Newspapers (29)). As Lord Diplockobserved in the Times case at pp. 309 – 310 "trial by newspaper,i.e. public discussion or comment on the merits of a dispute whichhas been submitted to a court of law or on the alleged facts of thedispute before they have been found by the court upon the evidenceadduced before it, is calculated to prejudice the requirement thatparties to litigation should be able to rely upon there being nousurpation by any other person of the function of that court to decidethat dispute according to law. If to have recourse to civil litigationwere to expose a litigant … to public and prejudicial discussion ofthe facts or merits of the case before they have been determinedby the court, potential suitors would be inhibited from availingthemselves of courts of law for the purpose ior which they areestablished."
In the Times Newspapers case (supra) Lord Simon at pp. 315 – 316explained that the law of contempt "is the means by which the lawvindicates the public interest in due administration of justice – thatis, in the resolution of disputes, not by force or by private or publicinfluence, but by independent adjudication in courts of law accordingto an objective code. The alternative is anarchy including thatfeudalistic anarchy which results from arrogation to determinedisputes by others than those charged by society to do so inimpartial arbitrament according to an objective code."
The rule against prejudgment operates even though there may beno risk of prejudice in the particular case because it is likely toproduce escalating, unfavourable reactions in others. As observed bythe European Courts of Human Rights in the Times Case, theregular spectacle of pseudo-trials in the news media is likely in thelong term to have nefarious consequences for the acceptance cf theCourts as the proper forum for the settlement of legal disputes. Thereason was explained by Lord Cross of Chelsea in the Times
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Newspapers Case (29> (1974) A.C. 273 at pp. 322 – 323 in thefollowing terms: "But why, it may be said, should such a publicationbe prohibited when there is no such risk? The reason is that onecannot deal with one particular publication in isolation. A publicationprejudging an issue in pending litigation which is itself innocuousenough may provoke replies which are far from innocuous but whichas they are replies, it would seem unfair to restrain. So graduallythe public would become habituated to, look forward to and resentthe absence of, preliminary discussions in the media of any casewhich aroused widespread interest. An absolute rule – though it mayseem to be unreasonable if one looks only to the particular case -is necessary in order to prevent a gradual slide towards trial bynewspaper or television."
I do not mean that acts done in courts of law cannot ever be thesubject of report, comment or criticism. The law imposes no blanketof silence on the news media. There is no total embargo on reportingcourt proceedings during the currency of a trial. Fair and accuratereports of proceedings in open court are permitted regardless of therisk of prejudice. Nor is there an unqualified prohibition on commentand criticism once legal proceedings are over. For, as Lord Atkinobserved in Ambard v Attorney-General for Trinidad and Tobago (62),(followed by Abrahams, C.J. In the matter of a rule on H.A.J.Hulugalle (2) at p. 398). See also per Gunasekera, J. in reWickramasinghe (19): "Justice is not a cloistered virtue: she mustbe allowed to suffer the scrutiny and respectful, even thoughoutspoken comments of ordinary men."
In Metropolitan Police Commissioner, ex P. Balckburn (63) LordDenning, M.R. said that "It is the right of every man, in Parliamentor out of it, in the Press or over the broadcast, to make faircomment, even outspoken comment, on matters of public interest.Those who comment can deal faithfully with all that is done in a courtof justice. They can say we are mistaken, and our decisionserroneous, whether they are subject to appeal or not."
Our Courts have consistently taken the view that they are far fromaverse to criticism. In the matter of a rule issued on F.A. Capperand H.A. Capper, the proprietor and publisher of the Times ofCeylon, (64) , Bonser, C.J. (Lawrie and Withers, JJ. agreeing) atp.319 said: "Now, we all as Englishmen are proud of the freedom
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of the press. Free criticism is a condition of the health of the bodypolitic; but free criticism must not be carried to undue lengths. Libertymust not be allowed to degenerate into licence. The dueadministration of justice is the foundation stone of al) our liberty; andunless justice is purely administered without fear or favour, existenceis not worth having."
Our own Sri Lankan Judges have shared the views of their Englishbrothers on the Bench. For example, in the matter of Armand deSouza,<1) Pereira, J. and De Sampayo, A.J. agreed with Woodrenton,C.J. at p.41 when the Chief Justice said: There is, as I have said,no kind of doubt as to the right by any member of the public tocriticize, and to criticize strongly, judicial decisions or judicial work,and to bring to the notice of the proper authorities any chargewhatever of alleged misconduct on the part of a Judge."
Pereira, J. In the matter of the rule on re De Souzam said: ’’! wouldgladly welcome fair criticism to the fullest extent on my orders andjudgment as a Judge of this Court. Reasonable argument andexpostulation however is one thing; the publication of false orfabricated material in order to hold the Court or Judge up to odiumor ridicule is another.”
Indeed, Soertsz, J. in Veerasamy v Stewart (16) regarded the Pressas the Court's partner in the search for justice. At p.486 he said:"No one desires to fetter unduly the freedom of the Press, least ofall Courts of Law, for the Press can be, and has often been apowerful ally in the administration of justice.” His Lordship, however,emphasized that "it is essential that judicial tribunals should be ableto do their work free from bias or partiality and the right of accusedpersons to a fair trial should be absolutely unimpaired."
In Reginald Perera v The King (8), the Privy Council gave as its finalreason for advising that the appeal be allowed that what waspublished was honest criticism on a matter of public importance.
In re Wickramasinghe (19), Gunasekera, J. quoted the fo’iowingpassage from the decision in Ambard v Attorney-General forTrinidad and Tobago m 'The path of criticism is a public way: thewrong headed are permitted to err therein: provided that membersof the public abstain from imputing improper motives to those takingpart in the administration of justice, and are genuinely exercising
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a right of criticism, and not acting in malice or attempting to impairthe administration of justice, they are immune." Gunasekera, J. thenadded: "While there is no question that judges and courts are opento criticism, there is no longer any room for doubt that scandalizinga judge is punishable as a contempt.”
That passage was also quoted with approval by Abrahams, C.J. in.Hulugalle's Case (supra) at p. 308. Abrahams, C.J. said: "It wouldbe thoroughly undesirable that the press should be inhibited fromcriticizing honestly and in good faith the administration of justice asfreely as any other institution. But it is equally undesirable that suchcriticism should be unbounded."
All the judges in Hewamanne v De Silva and Another(3) stressed theimportant role of the press in Sri Lanka. (See especially the remarksof Ranasinghe, J. at pp. 173-175).
What is prohibited are comments that are factually incorrect or unfairor unconcerned with matters of genuine public concern or which tendto bring the authority and administration of law into disrespect ordisregard and comments that interfere with or prejudice the fair trialof a pending cause. The law of contempt does not prevent thepublication of honest and genuine criticism and comment, expressedin appropriate terms. (Gray's case (7) Police Commissioner, ex p.Blackburn per Salmon, J. Hewamanne v De Silva (31 at p.34 perWanasundera, J. and at p. 156 – 161 per Ranasinghe, J, (Cf. In reCapper (64) per Bonser, C.J.). Comments about pending cases arenot necessarily unseemly or harmful to the administration of justiceand therefore they are not absolutely prohibited. (Cf. ScheringChemicals v Falkman Ltd (‘,4,). But comments should be postponedif they may prejudice a fair trial. Cf. per Lord Reid in A – G v TimesNewspapers Ltd. It may, as Soertsz, J. observed in Veerasamy vStewartfl6> be "poor comfort" to be told that although one may notexpress one self while a case is pending which may cause prejudice,yet vent may be given to one's feelings "when the case has beenfinally decided so long as one confines oneself to relevant facts andkeeps within bounds." But, as Soertsz, J. added, "that appears tobe well settled law."
Does this not come into conflict with the important fundamental rightof free speech and expression? In terms of Article 14 of theConstitution, every citizen is entitled to the freedom of speech and
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expression Including publication. Yet where the exercise of this rightwould be calculated to create a risk of prejudice, either to a particulartrial or to the administration of justice generally, that freedom must,in the interests of society, be curtailed. The law of contempt of courtoperates "untrammeled by the fundamental right of freedom ofspeech and expression contained in Article 14“ of the Constitution.(Per Wanasundera, J. in Hewamanne v De Silva (3))
I am of the view that the article in question was way beyond thepermitted limits of comment since it tended to obstruct or impedethe proceeding before the Court and because it tended to bring theadministration of justice into disrepute.
It was submitted by learned President's Counsel for the respondentthat the article was published on the second page of the D'<vainanewspaper, which was largely devoted to advertisements, and thattherefore there was little likelihood of prejudice with regard ic theproceeding before the Court. It was also suggested that the wholeof the article may not have been read, although the basis upon whichthat supposition rested was not explained to us. Published as it wasunder a bold headline, it was more than likely that the articleattracted the attention of a large number of readers. Perhaps thearticle may have caused somewhat less harm than if it had appearedon the front page of the newspaper. This may be a mitigatingcircumstance. But even on the second page, it did present a realrisk of prejudice. Considering that the circulation of theDivinanewspaper is nation-wide, there was a strong probability that it wouldbe read by at least some of the judges and potential witnesses inthe case which was commented upon as well as by many othermembers of the public who were unconnected with the proceedingbefore the Supreme Court but who might be litigants or witnessesin other cases. The administration of justice in the particular matterbefore the Supreme Court and in other cases as a continuingprocess was likely to be obstructed, impeded or prejudiced.
It was submitted on behalf of the respondent that the speech inquestion was made by a politician at a political meeting and thatreaders would, therefore, regard it no more than a piece of worthlesspolitical propaganda. In the circumstances, it was submitted, thepublication was not actionable.
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In Veerasamy v Stewart (16) Soertsz, J. said that he should “bear inmind that the summary jurisdiction to punish tor Contempt of Courtmust not be exercised in regard to matters which can, if at all, besaid to tend to prejudice or interfere with parties or the course ofjustice only in some remote or far-fetched manner. It has beenobserved that Courts should not be astute to exercise this summarypwer to punish contempts of a technical kind."
In Jayasinghe v Wijesinghe (16) Koch J said: “I think that if thepublication, taken in connection with the circumstances of the case,is such that it tends or is calculated to prejuedice the petitioner inobtaining a fair and impartial trial, the Court ought to interfere andpunish the offender whether there was any intention to so prejudicethe petitioner or not; but if, in the circumstances, the offence is ofsuch slight and trivial a character as to amount to a commission ofa technical contempt only, and if the petitioner is not likely to beprejudiced in his trial, the Court will not interfere."
Koch, J. and Soertsz, J. ought not to be taken, as some Englishcases seem to have done, (e.g. cf Chambers v Hudson Dodsworth& Co. (65!; Carl-Zeiss Stiftung v Ryner & Keeler Ltd(66). VineProducts v Green (49)) to import the concept of seriousness into thequestion of whether there is a contempt at all . Koch and Soertsz,JJ. were, I believe, in no doubt that the offence had been committed,although the absence of serious prejudice was a matter which theytook into account in deciding what course of action might be takenagainst the offender. A "technical contempt", as the Court said inthe Australian case of A.G. (N.S.W.) v John Fairfax & Sons Ltd. (67)"is contempt". The separate, subsequent question of what action theCourt would take, in terms of punishment having regard to thedegree of prejudice occasioned by the statement is another matter.(Cf. per Koch, J. in Jayasinghe v Wijesinghe (14) per Poyser, S.P.J.In re Ratnayake (,5); per Basnayake, J. in Attorney-General vVaikunthavasam (17>. See also per Cotton, L.J. in Hunt v Clarke (52)per Lord Reid in The Sunday Times Case (29)). Despite the twopassing references to "technical contempts" which I have referred to,our decisions do not require us to become entangled in the web of“technical contempt". I
I agree, however, that, upon the application of the de minimisprinciple, there can be no contempt of which a court would take
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congnizance if the obstruction or prejudice is not real but rather,trifling, far fetched, remote or merely theoretical and in that sensetechnical, (Cf. Anon (69); Powis v Hunter; (70) Matthews v Smith(71); In re General Exchange Bank (72); In re London Flour Co. Ltd(73) ; Vernon v Vernon (74); Buenos Ayres Gas Co. v V/ild (75) ;Hunt v Clarke (52): Metropolitan Music Hall v Lake (76) ; Laurene vAmbery{77) In re Rochester Election Petitionim: In re Evening Newsand Post(79); In re Pontefract Election Petition ; In re MartindaleP0)In re Certain News papers, Duncan v Sparling ; Ex pane Foster(82); In re E. Wilson Gates (83): Kelly & Co. v Pole (84); Fislden vSweeting R v Payne and Cooperm ; Fairclogh v ManchesterShip Canal(86); Fairclough v Manchester Ship Canal Co. (87); In reHooley, ex P. Hooley (88); Shaw v India Rubber Co. Ltd (89!; In reNew Phillips v Hessl91>; In re Marquis Townshend(92) R v Daily Mail<93); Ex p. Stark (94)). The circumstances of the case, including thestatement, the occasion and place of its utterance and the status ofa respondent, are no doubt considerations relevant to the puposeof evaluating the extent of obstruction or degree of prejudice of astatement complained of. There is nothing in the circumstances ofthis case, however, that induces me to consign the statement inquestion to the realm of venial trifles. As far as I can -ascertain, thereis nothing in the decided cases supporting the proposition that merelybecause a statement comes from a politician, at a political meeting,the de minimis principle should become automatically applicable.!am reluctant to accept the invitation to relegate the speeches of allpoliticians made at all political meetings to such a lowly position.
Having said that, I should like to say this. The Constitution hasclearly defined our roles as legislators and judges as to how thesovereignty of the People shall be exercised. The judicial power ofthe People, in terms of Article 4 (c) can only be exercised throughthe courts, tribunals and institutions created and established orrecognized by the Constitution or created and established by law,except in regard to matters relating to privileges, immunities andpowers of Parliament and of its members, wherein the judicial powersof the People may be exercised directly by Parliament according tolaw. Except as permitted by the law, politicians and other personssuch as editors and reporters, are not, to use the words ofWoodrenton, C.J. in the matter of Armand de Souza(1), "at liberty toinvite themselves into the judgement seat, and to scatter broadcastimputations such as those with which we have here to do.
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"It is today, as Chief Justice Abrahams said in 1936 in AbdulWahab v A. J. Perera et at. <12) as important as -ever to realize thatthose people who have the privilege of making laws which governus "have also the stern obligation of obeying those laws." See alsothe observations of Poyser, S.P.J. in re Ratnayake (15) quoted belowwith regard to the need to deter members of the Legislature frominterfering with the administration of justice by imposing suitablepunishments on those who do interfere.
Even if it is conceded that the judges and the witnesses were notinfluenced or likely to be influenced in the case before the Court,that does not end the matter, for there is, in deciding whether theactus reus was committed, the need to consider the effect of thestatement on the administration of justice as a continuing process.Thus where there was intemperate criticism of a judge in his conductin a particular case (as for instance in re De Souza(1)) or a jury aftera case was concluded (as for instance in Capper and Capper<64)),or where there was a scandalizing of a judge by unfair critcism ofhis conduct in general (as for instance in the matter of Armand deSouza (1)) or where there was culpable criticism of the general bodyof judges or a group of judges (as for instance in re Hulugalle(2);and in re Wickramasinghe M9i), there could have been no prejudiceto a particular case. Yet the acts were held punishable, the objectof the law of contempt in such cases obviously being to ensurepublic confidence in the administration of justice as a continuingprocess, rather than to ensure that the course of justice was notimpeded or obstructed in a particular case. The jurisdiction of theCourt exists not only to prevent harm in a particular proceedingbefore the Court but, in the public interest, also to prevent similarharm arising in other cases, (seeAttorney-General v Vaikunthavasan(17) per Basnayake, J.), and to preserve the authority and power ofthe Courts for the benefit of future litigants. (See per Abrahams, C.J.in the matter of a rule on Hulugalle)(2) In the matter of Armand deSouza,(1) Woodrenton, C.J. at p.40 quoted with approval the followingwords of Justice Wilmot in R. v Almon (supra): The Constitution hasprovided very good and proper remedies for correcting and rectifyingthe involuntary mistakes of Judges and for punishing and removingthem for any voluntary perversions of justice. But if their authority istrampled upon by pamphleteers and news writers, and the peopleare to be told that the power given to the Judges for their protectionis to be prostituted to their destruction, a Court may retain its power
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for some little time, but I am sure it would instantly lose all itsauthority, and the power of the Court will not long survive theauthority of it. "(Cf. In the matter of a rule issued on Capper andCapper(64)).
In re Ratnayake (15) the respondent had written to a Judge requestinga postponement of a case explaining that a party against whom awarrant had been issued for failure to appear in Court on summons,was in a delicate state of health. Poyser, S.P.J (Keuneman and DeKretser, JJ. agreeing), was of the view that a contempt of courthad been committed. In support of his view, at p. 101. Poyser, S.P.J.quoted the following remarks of Lord Chancellor Cottenham in DyceSombre (95): "Every private communication to a Judge, for the purposeof influencing his decision upon a matter publicly before him, alwaysis, and ought to be reprobated; it is a course calculated, If tolerated,to divert the course of justice, and is considered, and ought morefrequently than it is, to be treated, as what it really is, a highcontempt of court. "Poyser, S.P.J. then said that although thecontempt was not a "serious one", yet it was properly the subjectof a judicial action particularly in view of the fact that the act inquestion had been committed by a person who was not only anAdvocate but also a Member of the Legislative Council. He said that"Persons in the position of the respondent must be made to realizethat they cannot interfere in the course of justice, and that if theydo interfere, or attempt to interfere, they will be punished."
In Attorney-General v Vaikunthavasari'7) Basnayake, J. (as he thenwas) said: "When dealing with the question of punishment, it mustbe remembered that the jurisdiction of the court exists not only toprevent the mischief in this particular case but also to prevent similarmischief arising in other cases."
Lord Diplock in the Times case (29) said: "The mischief against whichthe summary remedy for contempt of court is directed is not merelythat justice will not be done but it will not be manifestly seen to bedone. Contempt of court is punishable because it undermines theconfidence not only of the parties to the particular litigation but alsoof the public as potential suitors in the due administration of justiceby the established courts of law."
In A/mon's Case (24) the proceedings against Almon, who had in 1965
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published libels upon the Court of King's Bench failed on technicalgrounds, but Wilmot, J in his notes (Wilmot’s Notes, 97 ER.94) saidas follows: "The arraignment of the justice of the Judges, isarrainging the King's justice; it is an impeachment of his wisdom andgoodness in the choice of his Judges and excites in the minds ofthe people a general dissatisfaction with all judicial determination, andindisposes their minds to obey them; and whenever men's allegianceto the laws is so fundamentally shaken it is the most fatal and mostdangerous obstruction of justice, and, in my opinion, calls out for amore rapid and immediate redress than any other obstructionwhatsoever; not for the sake of the Judges, as private individuals,but because they are the channels by which the King's justice isconveyed to the people. To be impartial, and to be universallythought so, are both absolutely necessary for the giving justice thatfree, open and uninterrupted current, which it has for many ages,found all over this kingdom, and which so eminently distinguishesand exalts it above all nations upon the earth.“
Learned President's Counsel for the respondent submitted that theoffence of contempt of this kind requires publication by thecontemnor. I agree. Publication involves no more than communicatinginformation from one person to another. In this way, as the materialwas handed from reporter to sub-editor to printer and to the proofreaders and to the editor and news vendors, publication would havetaken place over and over again. In Ragupathy's case (34) where thematerial complained of was in a petition of appeal, Keuneman, S.P.J.at p. 299 said: “But even a petition of appeal of the kind we aredealing with passes through many hands, viz., the persons whoprepare and type it, officials at the jail, officers of the Supreme CourtRegistry, and others who have access to it." The respondent didpublish the statement.
These would be merely internal and private publications of thespeech which were not seen by the judges or potential witnessesor by persons connected with the case. There being nothing thatcould by such limited publication interfere with or prejudice the judgesor witnesses, there would have been no act of interference with theparticular case; and even if there was some prejudice with regardto the administration of justice as a continuing process, it would havebeen an act of such insignificance that the Court would not havetaken cognizance of the act. But these matters, although rolled up
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on the no-publication-argument, have nothing at all to do with thequestion whether the respondent published the statement.
With regard to the question whether the respondent published thestatement in question, namely, the article in the newspaper, learnedPresidents Counsel for the respondent submitted that the respondentdid not, cause that publication and therefore he did not publish thestatement. The respondent, he said, was a mere reporter whocollected the information and passed it on to the editor and that thedecision to publish and the responsibility for the publication was thatof the editor. True enough, in the preceding year, only 35 of 250reports submitted by him had been made use of by the newspaper.Yet, the respondent's offending report, albeit one of the exceptionalpieces he turned out, was actually published in the newspaper. Thereporter in this case did much more than supply information.: He wasthe author of the article and in every sense he was a party to thepublication just as the reporter was in the Odham's Press case(supra). The activities of the respondent as a reporter may not havebeen the case of the contempt, but it was at least a concurrentcause. His activity in this case, no less than that of his editor,completed the causal explanation of the act in question, namely themaking of the speech by Mr. Senanayake at Aranayake and itspublication in the Divaina newspaper. The action of the editor indeciding to publish the report of the respondent did not break thecausal explanation. Whatever may have been usually done with hisreports, the fact remains that in this instance, and that is all thatconcerns us, not only was it used, but his report, except for theaddition of the headline, was almost entirely reproduced in thenewspaper and published to the public. Would it then be reasonableto say that the reporter in this case did not publish the statement Ido not think so.
The actus reus has, therefore, been established.
The only question that remains is whether the respondent should beexcused if, as he claims, he had no intention of publishing thestatement and that he had no intention of causing disrepute ordisrespect to the Supreme Court or any Court, and that he did notintend to obstruct the petitioner's case. In other words, therespondent submits that he ought to be free from liability becausethere was no mens rea.
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The learned Attorney-General suggested that questions of contemptof court belonged to the realm of "strict liability" and that, therefore,the intention, the question quo animo the offence was committed,was irrelevant except to the question of punishment. I agree thatintention is of crucial importance in deciding upon punishment. Theabsence of intention to obstruct or prejudice the course of justicehas consistently been taken into account by the Supreme Court withregard to the question of punishment. Thus in Hewamanne v DeSilva and Another (3) Wanasundera, J. at pp. 110 – 111 confirmedthe rule but did not impose any punishment on account of the factthat the respondents did not have a “deliberate intention of interferingwith the administration of justice though the publication had thateffect." Abdul Cader, J. at p.195 desisted from imposing apunishment in the absence of "malice".
There is, however, a large and debatable penumbra of uncertaintyand vagueness with regard to the element of mens rea in the offenceof contempt. As Borrie and Lowe (Law of Contempt 1983, 2nd Ed. atp.70) point out, "the application in general of the doctrine of mens reato criminal contempt is not entirely clear." Arlidge and Eady (The Lawof Contempt, 1982), at pp.155 – 156 state as follows: "The natureof the mens rea required is still an open question. Before thepassing of the 1981 Act there were various decisions which indicateda particular mens rea was required in certain forms of contempt, butnowhere has a general definition been attempted".
Glanville Williams (Textbook of Criminal Law 2nd Ed. at p. 929 note2) states that although the offence of contempt has been said to bean exception to the general rule laid down by Cockburn, C.J. thatmens rea is "the foundation of all criminal justice", "how far this istrue has never been altogether clear . . .Contempt of court wasperhaps a crime of strict liability in certain respects at commonlaw. .
It seems to me that, in general, in the case of the offence ofcontempt of court, it is the addition of mens rea to the actus reusthat completes the offence. As Wilmot, J. at p.102 held in Almon'sCase (supra), Actus non facit reum nisi mens sit rea is a part ofthe offence of contempt. (See also Metropolitan Music Hall vLake (76) Marquis Townshend (92) ; per Denning, M.R. in A. – G. vButterworth (96) per Claasen, J. in the South African case of S vVan Nieker (97).) But see per Donovan, L.J. in Butterworth's Case
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(96); per Goddard C.J. in R v Odham's Press Ltd, ex p. A -G 16>; exp. Jones (10) per Lord Erskine, L.C.; St. James Evening Post Case(9)) The Privy Council in Reginald Perera v The King (8) in holdingthe respondent free from liability took into account the fact that hehad acted in good faith. Again, in Vidyasagara v The Queen ;45) LordGuest in delivering the decision of the Privy Council at p.27 said "Thequestions, therefore, which were before the Supreme Court were (1)whether the statement . . . brought the Court into disrepute and (2)if so, whether the statement was made without sufficient reason." Itappears, therefore, that the Privy Council was not regarding theoffence of contempt as one which imposed an absolute liability. ThePrivy Council in Vidyasagara's Case at p.28 found that the offensivestatement was "deliberate and unnecessary in the circumstances" andaffirmed the decision of the Supreme Court.
A person is not guilty of the offence of contempt unless there wasmens rea as the law may require with respect to each materialelement of the offence. With regard to the element of publication,which as we have seen has been established in this case, it isnecessary that the publication was intentional. In McLeod v Sr. AuDyn(11), where a newspaper printed certain letters containing abusive andderogatory comments on the Chief Justice of St. Vincent, bet theaccused had merely lent a copy of the newspaper to the librarianof a library that had not received its copy, the Privy Council heldthat the accused had not committed a contempt, for, as Lora Morriswho delivered the judgment said at p.562: "It would be extraordinaryif every person who innocently handed over a newspaper or lent oneto a friend with no knowledge of its containing anything objectionable,could thereby be constructively but necessarily guilty of a contemptof court because the said newspaper happened to containscandalous matter reflecting on the court."
The correctness of the decision in McLeod's Case was accepted byLord Goddard, C.J. in R v Griffths, ex p. A. – G. i5). "We should",the Chief Justice said, "take the same view".
The article in the case before us was, except for the headline, inthe exact words of the respondent and he can hardly claim Mat hewas not aware of its contents. Moreover, since his paymentsdepended on publication, he must have hoped very much the.', mis,as indeed all his other contributions, would be published. the
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circumstances, the respondent can hardly claim that he did not intendthe publication of the statement in question. I think he intended thepublication in the sense that it was his conscious object that hisreport would be published.
Although it was really the person in charge of the provincial newsdesk who had checked the report and authorised the publication inthe matter before us, the editor had accepted responsibility for thepublication and he had been already punished for contempt of court.To publish or not, learned President's Counsel for the respondentsubmitted, is the decision of an editor. It is his responsibility toscrutinize a text that had been forwarded by a reporter and to identifyand expunge deleterious and noxious material.
It is a tradition of journalism as well as a rule of law that, becauseof his ultimate and overall control, an editor is responsible for andtakes responsibility for what is published in his paper. (See ReO'Connor, Chesshire v Strauss (98) R v Evening Standard Co. Ltd. exos) ; Ft v Odhams Press Ltd. ex p.A – G (100). See also The Queenv D. Peries (18)). The editor is responsible whether he deliberatelypublished the article in complete disregard for the due administrationof justice, as for instance in R v Boiam ex p. Haigh (101) whether hehad no personal knowledge, as for instance in The Queen v D.Perieset al (18); Re O'Connor, Chesshire v Straus (supra) ; ex p.A – G(100), and whether he bona fide believed in the truth of the report(as in R v Evening Standard Co. Ltd (99)) and whether he was notthe writer of the article (as in re Hulugalle (2).) In the matter of therule on De Souza (68), the editor denied the charge and insistedon proof of the fact that he was the editor. Pereira, J. regarded thisas an aggravating circumstance.
However, learned President's Counsel for the respondent submittedthat reporters are not in the same position as editors. In support ofhis view be cited the comment of Chief Justice Lord Goddard in Rv Griffths ex p.A – G (5) that "The offence is not a mere preparationof the article but the publication of it during the proceedings . . .Ithas never yet been held that a reporter who supplied objectionablematter to his editor or employer, which the latter published, is himselfguilty of contempt."
As learned President's Counsel quite properly pointed out, LordGoddard must have overlooked the decision in R v The Evening
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Standard Ltd m where a reporter who telephoned the offensivematerial to his editor was found guilty of contempt.
In the same year as the Griffths case, a reporter who wrote theoffending article was found guilty of contempt and fined in the caseof R v Odhams Press Ltd ex p. A – G (6) Reporters are notnecessarily free from liability. And the case before us is not the firstcase in this country when a reporter has been asked to show causewhy he should not be punished for contempt of court. For examplein re U.P. Jayatilake (33) a correspondent of the Ceylon Daily Newswas asked to show cause, although in that case he was not heldliable because a magistrate who had no jurisdiction to do so hadcalled upon the reporter to show cause why he should not be dealtwith for contempt.
I am of the view that reporters who supply information to anewspaper are responsible for the publication as the editor 3c:vie& Lowe, op. cit. p.250 state that: "The principal persons who ■. or besaid to bear a real responsibility for a newspaper or ma jaxinepublication and who can, therefore, be regarded as intending topublish are: the editor, the proprietors, the printers, the personssupplying the information to the newspapers such as a reporter ornews agency and, lastly, the persons responsible for the distributionof the newspaper.” Arlidge and Eady, op.cit. at p.128 point out thatalthough within a newspaper a reporter publishes to a sub-editorand so on and not to the public at large, yet he is a party to thepublication in the newspaper and he is liable on the basis that heintended the publication. "Obviously", they say, "a reporter or newseditor intends that matters he supplies shall be published, althoughothers may have a discretion to exercise it." I
I have already held that in this case the respondent did intend thepublication in the sense that he desired it, that publication was aconscious object of submitting his report to the editor. Even if I amprepared to hold that the reporter did not intend to publish in thatsense, he must be held liable on the basis that he was heedless ofthe risk that publication was highly probable, or having regard to hispast experience that some of his contributions were published, thatpublication was a reasonable possibility. Considering the nature andpurpose of his conduct and the circumstances known to him, hs wasguilty of a deviation from the standard of care that would have beenexercised by a reasonable man in his situation and he must,
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therefore, be held liable.
If the respondent intended the publication, does that end the matter?According to some decisions, that would appear to be the case.
In Hewamanne v de Silva(3) Ranasinghe, J. (as he then was) saidat p. 141 that in view of his decision with regard to the defence ofprivilege it was unnecessary to consider the contention put forwardwith regard to mens rea. However, Ranasinghe, J. added: "Even so,in view of the fact that there has been considerable discussion ofthis matter, I would merely give an indication of what seems to bethe position, in law, in regard to this matter. Having regard to thevarious decisions – from the English, Indian, Australian and also ourown courts – and also the discussions of the several authors of textbooks, it seems to me: that the mental element required to beestablished is merely an intention to publish the impugned,objectionable matter; that an intention to bring the judge or the courtinto hatred, ridicule or contempt and interfere with the dueadministration of justice on the part of the offender is not a requiredingredient of the offence of contempt of court." At p. 171Ranasinghe,J. stated as follows: “No allegation of malice has beenmade against either of the respondents by the petitioner in hisaffidavit; and learned Queen's Counsel did also, in the course of hissubmissions, state that no such allegation is being made. There isno reason why the 1st respondent's assertion that his was an actdone bona fide and solely for the purpose of supplying informationto the public should not be accepted."
There are other cases, which seem to support Ranasinghe, J.'s viewthat intention, apart from an intention to publish, is not a necessaryingredient of the offence of contempt.
In Veerasamy v Stewart et al (16), the editor and publisher of theTimes of Ceylon were charged with contempt in respect of certaineditorials, letters and reports of a speech appearing in theirnewspaper referring to proceedings in a Magistrate's Court whichwere likely to prejudice a fair hearing. The case, Soertsz, J. saidat p.482, afforded an illustration of what he believed "has been theexperience of nearly every one of us, that we have slipped intosaying things we did not intend, or that we have said more or lessthan what we meant." His Lordship said that he was satisfied thatin publishing these articles "it was not the purpose of the respondents
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to prejudice the petitioner and his co-accused, or to interfere withthe course of justice" Soertsz, J. then added as follows: "But,unfortunately for the respondents, that is not an end of the matter.As Harris, CJ. said in the case of Superintendent of Legal AffairsBehar v Murali Manohar (102) "It has been frequently laid down thatno intent (emphasis is his) to interfere with the due course of justice,or to prejudice the public need to be established if the effect of thearticle or articles complained of is to create prejudice, or is tointerfere with the due course of justice1'. His Lordship then proceedsto the question of the meaning of the words complained of and statesthat what is relevant is not whether the publication in fact interferesbut whether it tends to interfere with the due course of theadministratioin of justice. Soertsz, J. then says: "Therefore, in viewof my finding that the respondents did not intend to interfere withthe course of justice, it is sufficient for me to address myself to thequestion whether these publications tend to prejudice the petitionerand the other accused, by interfering with their right to a fair andimpartial trial." After stating that the prejudice should not be remoteor far-fetched, Soertsz, J. at p.483 quotes the observations of LordHewart, C.J. in Gaskell and Chambers Ltd. (103)that "The applicantmust show that something has been published which is either clearlyintended or at least, is calculated to prejudice a trial that is pending"and analyses the dictum in the following terms: "the conditions laiddown in it for the exercise of the jurisdiction appear to be (a) apending trial: (b) a publication intended or calculated to prejudicethe trial." The emphasis was that of the learned Judge. Having saidthat the respondents when they wrote the articles were "well awareof the pending case", his Lordship states that the first condition wastherefore satisfied. Soertsz.J. then says: “In regard to the secondcondition, I have observed already that I am satisfied that therespondents did not intend to prejudice the accused by interferingwith their right to a fair trial. The sole question that remains iswhether these publications are calculated to prejudice the accusedin that way. Commenting on this phrase "calculated to prejudice" inthe case of R v Tibbits (55) Lord Alverstone, C.J. saic: “Theessence of the offence is conduct calculated to produce, so to speak,an atmosphere of prejudice in the midst of which the proceedingsmust go on." Soertsz, J. then examines the meaning of the wordscomplained of at p.487 and holds that "although the respondents hadno intention to cause prejudice, the publications for which they admitresponsibility are calculated to produce an atmosphere of prejudicein the midst of which proceedings must go on and in that way they
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tend to interfere with a fair trial of the case”. He concludes byobserving that the respondents entertained the opinion that they wereentitled to comment in the way they did but finding that they werein error, they had apologized to Court. In all these circumstancesand particularly in view of the fact that it was not the purpose ofthe respondents to cause prejudice or to interfere with the courseof justice, the rule was discharged.
"Calculated to prejudice" may mean likely or having a tendency toprejudice. The phrase may also mean intended to prejudice. To saythat contempt is committed if the statement is likely or has atendency to prejudice even though it may not in fact have that effect,or was not intended to have that effect is a matter relevant to thequestion of actus reus. Whether intention for the purpose of mensrea existed is, with great respect, a separate question. As the editorand publisher of the newspaper, the respondents did not deny andcould not have denied that they intended publication. What they diddeny was the existence of an ulterior intention and that fact resultedin the rule being discharged.
In the matter of a rule on Ragupathy (34), Keuneman, S.P.J.(Soertsz, A.C.J and Wijeyewardene, J. agreeing) said at p.298 asfollows: "In his affidavit the party noticed has averred that he hadno intention to convey a sinister or derogatory meaning. That,however, even if true does not conclude the matter." Keuneman,S.P.J. then quotes the test formulated by Woodrenton, C.J. inArmand de Souza (supra) for ascertaining the meaning of the words,viz. how would the majority of those who it reached interpret thewords. In discussing the question of punishment at p. 299,Keuneman, S.P.J. states that "It is very likely that the party noticeddid not intend to convey the full meaning which the words wouldordinarily bear," but finding that he persisted in maintaining that thewords were not "offensive and derogatory to the Judge", his humbleexpression of regret for having made the statement was not asufficient apology which could be taken in mitigation and accordinglysentenced him till the rising of the Court and also fined him. It is ofimportance in deciding whether the actus reus has been committedwhat imputation is conveyed by the words complained of. Whatimputation is conveyed by any particular words is, as I have said,to be determined by an objective test so as to exclude the meaningintended by the man who published the words. Keuneman, S.P.J.seems to support this view. But since the respondent persisted
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in saying that the appropriate imputation was the meaning heintended, rather than frankly admitting that the imputation attributedby the Court was not what he had intended and endeavouring toshow that his failure to perceive it was not culpable, he waspunished.
In Queen v Pieris Sri Skanda Raja. J. said at p.374: "In this caseI find it difficult to accept what the reporter in question avers in hisaffidavit. Having by his negligence put the respondents into troublehe seems to attempt to save himself and his job. An affidavit fromhis brother who is alleged to have acted as his substitute has notbeen filed." At p.375 he concludes as follows: "Though no intentionto prejudice the minds of the jury against the accused can beimputed to the respondents, this publication was calculated to ortended to do so. And that is enough to constitute contempt. Intentionis not a necessary element in a matter of this kind." It seems clearfrom both the judgments of Sri Skanda Rajah,J. and of T.S.Fernando. J. that the respondents in that case were guilty ofnegligence.
On the other hand, there are other decisions which clearly suggestthat malice will make a respondent liable and that good faith will freehim from liability. In Hewamanne v De Silva (supra), althoughRanasinghe, J. had, as we have seen, stated obiter that intention,beyond intention to publish was, not a part of the offence ofcontempt. His Lordship at p.173, however, with great respectcorrectly, includes the element of absence of malice in formulatingthe defence of privilege. His Lordship said: "a consideration of thequestion, which arises upon the plea put forward on behalf of therespondents. . .leads me to the view that the protection granted bythe common law to a fair and accurate report of proceedings ofParliament without malice and solely for the information of the publicthough it contains defamatory matter also protects a fair and accuratereport of a proceeding of Parliament, such as "A", published withoutmalice and solely for the information of the public and the publicationof which has not been prohibited by Parliament even though suchreport contains matter which would have otherwise rendered thepublisher liable to be dealt with under that branch of the law knownas "scandalizing a judge or Court".
In Reginald Perera v The King (8) /he Privy Council applied the testin Reg v Gray(7) that there must be involved "some act done or
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writing published calculated to bring a Court or a judge of the Courtinto contempt or to lower his authority "or something "calculated toobstruct or interfere with the due course df justice or the lawfulprocess of the Courts. Lord Radcliffe at p.296 then said: "What hasbeen done here is not at all that kind of thing. Mr. Perera was actingin good faith and in discharge of what he believed to be his dutyas a member of the Legislature. His information was inaccurate, buthe made no public use of it contenting himself with entering hiscomment in the appropriate instrument, the Visitors Book, and writingto the responsible Minister. The words that he used made no directreference to the Court, or to any judge of the Court, or indeed tothe course of justice, or to the process of the Courts. What hethought that he was protesting against was a prison regulation, andit was not until some time later that he learnt that, in so far as apetitioner had his petition dealt with in his absence, it was theprocedure of the Court, not the rules of the prison authorities, thatbrought this about. Finally, his criticism was honest criticism on amatter of public importance. When these and no other are thecircumstances that attend the action complained of there cannot becontempt of Court." The respondent it seems was exonerated on twogrounds: (1) the absence of a statement that was in naturecontemptuous and (2) the fact that he had acted in good faith.
in the matter of Capper and Capper (64), the proprietors andpublishers of the Times of Ceylon were ordered to show cause whythey should not be punished for contempt of court by holding up topublic odium and ridicule the jury who had tried a certain criminaltrial. The trial was over in this case and so there was no questionof interfering with pending litigation. The contempt, therefore, wasconcerned with future litigation. The respondents said that in criticizingthe conduct of the jury, they did not intend to scandalize the Court,no contempt was intended, that the act was bona fide withoutmalice, that the highest respect was entertained by them for theCourt and that they regretted the act. Bonser, C.J.(Lawrie andWithers, JJ, agreeing) held at p.320 that "The proprietor has statedthat he had no wish to interfere in any way with the administrationof justice or to insult the jury; that he did not know that that wasthe result of his acts – in other words that he did not know anybetter; and the Court accepts the apology and explanation whichhas been offered, and the order will be that no order will be madein the matter.”
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It would seem that the Court did not take cognizance of the allegedcontempt because the actus reus was absent, nor because anintention to publish was absent, but because there was nc Intentionof disparaging the members of the jury or interfering with theadministration of justice as a continuing process.
In Kandoluwe Sumartgala v Mapitigama Dharmarakitta ei ai (25) anapplication was made by Mapitigama Buddha Rakkita for a -ole nision Tibbotuwe Siddhartha Sumangala Maha Nayake of the .MalwatteChapter, (the first respondent) who had in a proclamation issuedwhile an appeal was pending, characterized the evidence given bytwo priests in the Court of law from which an appeal had beenpreferred, as being “suppressive of truth and upholding falsehood,and the alleged editor (the second respondent), and the printer andpublisher (third respondent of the Sarasavi Sandaresa who hadreproduced the statement Woodrenton, J. (at p.201) said that he had"no hesitation in holding that this is a clear case of contempt ofCourt". According to Woodrenton, J. (pp.200) in fin. – ICtl), themain defence in the case was that set out in the affidavits of thefirst and third respondents, the author of the proclamation and theprinter and publisher respectively, namely, that they had nc: intendedto commit a contempt of Court and that “there were, in any event,circumstances which constituted a great mitigation of any offence thatcould be laid to their charge." His Lordship was “quite prepared. . .to accept the good faith of the allegations contained in theseaffidavits." In conclusion, Woodrenton,J. at p.202 said: "In regard tothe present case, it appears to me that in view of the affidavits ofthe first and third respondents, and of the apologies in theseaffidavits, the ends of justice will be met if the present rule isdischarged, with costs to be paid by those respondents to theapplication. As regards the second respondent, I think that hisaffidavit shows that he is in no way responsible for :he publicationcomplained of. His name does not appear on the pages of theSararsavi Sandaresa, and I do not think that the mere fact that hisname does appear in the almanac which Mr. A. St. V. Jay-3wardenshas shown us should be allowed to override the terms of his affidavit,to the extent of his being called upon to pay any share of theapplicant's costs of the present motion. I should propose, therefore,as regards the second respondent, simply to discharge i:e rule,making no order as to costs."
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Grenier, A.J. at p.202 agreed "entirely" with what had "fallen" fromhis brother.
If the rule was discharged although there was, as Woodrenton, J.said, not once, but twice at P. 201 that he had "no hesitation inholding" that there was a contempt of Court, it would seem thatalthough he was satisfied that the actus reus was established, therewas no mens rea and that, therefore, the respondents were notliable. However, there was an award of costs against the first andthird respondents. On the other hand, the rule against the secondrespondent was not only discharged, but no order as to costs wasmade against him because there was no evidence that he was inany way “responsible" for the publication complained of. Perhaps hewas in fact not the editor and therefore he was not in a situationrequiring the nature and degree of care required of such a person?This is not expressly stated in the judgment, but it seems to be areasonable inference. It would seem that if he was in fact the editor,the second respondent might also have been held "responsible" andliable to pay costs.
In re Ratnayake(15! the contempt was held to be not a serious one,but nevertheless one which deserved to be dealt with by court.However, in view of the fact that it had been admitted that the lettershould not have been in the form in which it was written and sincean apology was made, the rule was discharged with a warning tothe respondent.
Learned President's Counsel for the respondent submitted that therewas no deliberate and wilful intention of scandalizing the Court orof causing prejudice to the administration of justice. On the basis ofthe dictum of Ranasinghe, J. in Hewamanne's Case at p. 173, andthe decisions in the cases of Reginald Perera, Capper, KandoluweSumangala and Ratnayake, it may seem that the rule in this casetoo should be discharged. However, it has been held in other casesthat it is not sufficient for a respondent to establish that he had nointention to scandalize or to interfere with the course of justice if itis established as a fact or inferred from the circumstances that hisconduct was an antecedent but for which the result in question wouldnot have occurred and that he foresaw or ought on account of hisposition to have foreseen that the result was at least a reasonabfepossibility. This, I believe, is the effect of the decisions in De Souza,Wickramasinghe, De Mel Laxapathy, Hulugalle, Abdul Wahab,
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Jayasinghe, Peries and Vaikunthavasan. Obviously, sincenegligence suffices, if a respondent acts puposely, knowingly orrecklessly, he will be liable.
In the matter of the rule on De Souza m, the Editor of the CeylonMorning Leader was before the Court. He had made false andfabricated statements about a criminal trial that had been recentlyconcluded. He had alleged that the presiding Judge was guilty ofbeing harsh, unreasonable and vexatious. Pereira, J. at p. 45 saidthat "Whether all this was the result of a mere itch for vituperationof those in high authority in the country, or a desire to advance theinterest of a newspaper by pandering to the morbid tastes of aclientele craving for claptrap and sensationalism makes littledifference.” At p.46, Pereira,J. found that the respondent had indulgedin "a game of reckless and impudent attack on the Judge '. Observingthat, although the respondent had aggravated his conduct by omittingto admit "fairly and squarely that he was the editor of ths CeylonMorning Leader newspaper and insisting on proof of that fact”, hehad, nevertheless, albeit tardily, tendered an apology in which heunreservedly withdrew the insinuations made by him and expressedhis regret. He was found guilty and fined.
The other case against De Souza as well as Wickramasinghe's Casealso seem to rest on the basis of recklessness in the sense of aconscious disregard of a substantial and unjustifiable risk ofinterference with the administration of justice or, having regard to therespondent's position, a gross deviation from expected standards ofconduct.
In the matter of Armand de Souza, (1) the Editor of r- e CeylonMorning Leader, it had been alleged in an editorial article entitledJustice at Nuwara Eliya, that the Judge, Mr. Hodson, presiding overthe Nuwara-Eliya and Hatton areas did not exercise ris ownjudgment but allowed himself to be influenced by the Police and thathe favoured the European planting community and cc-jid not berelied upon to do justice when a European planter was a party to alegal proceeding.
In a statement read to Court, de Souza said that upon receipt ofcomplaints from several proctors and others of "the irregular methodsand impatient temper of Nuwara-Eliya Judge", he visited T,e Court“and was satisfied of the truth of the complaints after making full
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inquiries from those present." De Souza said that he himselfobserved that “the Judge arrived at about 11.30, tried cases inchambers till about 1.50, and then came on the Bench for about 10minutes, and got through a considerable amount of work in excessivehaste, postponing some cases because his train was coming, andleaving about fifteen others entirely untouched. I came back, and indue time wrote two editorials . . .
I did not know the Judge, and had never, to my recollection, writtenabout him. I have no feeling whatever against him. I acted throughoutfrom a sense of my duty as a public journalist, anxious for the saferand more careful administration of justice both at Hatton and atNuwara Eliya. I intended no contempt of his Court, and nothing wasfurther from my thoughts and intentions than to bring theadministration of justice into contempt; my object and anxietythroughout being the exact contrary, namely, that the people ofHatton and Nuwara Eliya should have justice administered to themin a manner calculated to inspire better confidence in theadministratiion of justice. I gathered that the people were disatisfiedand felt aggrieved."
He admitted that although Hodson had "honestly and conscientiouslyexercised his own judgment", yet he had allowed such judgment tobe “influenced by statements and statements improperly made by thepolice". He also admitted that there was no room for any suspicionof unfairness on the part of the Judge, that this man Hodson haddone his duty “conscientiously" and that he was "a straight, honest,man", that he was, with regard to the allegation of favouringEuropeans, "mistaken in the methods adopted."
De Souza was convicted and sentenced to undergo one month'ssimple imprisonment.
In re Dr. S.A. Wickramasinghe(19) the respondent, a well-knownpolitician, had at a public meeting scandalized the judiciary. Headmitted he had no cause to show why he should not be punishedbut explained that he had intended to criticize the police and not theCourts and expressed his regret for "unintentionally" breaking the lawby criticizing the Courts. Gunasekera, J. (Gratiaen and Pulle, JJ.agreeing) said at pp. 512-513 that: "It is idle for the respondent topretend that he did not intend to bring the judiciary into contempt;though it may be true that he did not know at the time that this
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'general criticism' of the judges amounted to a contempt of court andin that sense it was 'unintentionally' that he broke the law". The Courtdid not regard his expression of regret as a sufficient apology andimposed a sentence of imprisonment in addition to a fine.
In Attorney-General v M. De Mel Laxapathy, (’3), the respondentclaimed that the offensive notice which he had caused to be printedand published was in the Sinhala language with which he was notwell acquainted, that he had no ill-feeling against the accusedpersons, and that it did not occur to him that they were likely to bethought as guilty by reason of what was stated. Abrahams, C.J.(Maartensz and Moseley, JJ. agreeing) was prepared to believe thatthe respondent "did act without due care and attention' in thepreparation of the offensive notice regarding a pending case. TheCourt was prepared to believe that he had "no intention of prejudicingthe fair trial of this case”, but nevertheless fined him.
In the matter of a rule on Hulugallei2), the respondent who was theeditor of the newspaper in which the article in question appearedstated in his affidavit that he was not the writer. He denied that thepassages complained of contained the meanings attributed to themin the Rule and protested his respect for the Judges and said thatif he had thought that the passages bore the meanings attributed tothem, whether the same amounted to contempt or not, he would nothave permitted publication. The respondent had not apologized. Withregard to the defence that he was not the writer, Abrahams. C.J. atp.308 said that the editor had passed the matter for publication andthat his responsibility was "therefore hardly less than if he had writtenit." He was imprisoned until the rising of the Court and fined.
In Abdul Wahab v A.J. Perera et al <12), where pending a criminalcharge against a person, the respondents distributed among thepublic a leaflet suggesting that the accused was guilty of the offencewith which he was charged, Abrahams,C.J. (Koch and Moseley, JJ.agreeing) said: "As to whether the respondents actually intended toprejudice a fair trial or not, we are of the opinon that they neverstopped to think about it. As is unfortunately not seldom the waysof men in such matters, they assumed the guilt of the accused andcould not contemplate any other conclusion to the trial than hisconclusion. But that they acted with deliberate malice against theaccused is a matter which we do not hold to be provedHowever,taking into account the fact that this was the first case v.nsr: a
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legislator had committed an act of contempt, that the respondentshad not disputed the facts and not raised any. technical points buthad rather “submitted themselves fully and humbly to the judgmentof the Court", the Court fined the respondents.
In Jayasinghe v Wijesinghe et al. (u), the respondents weresignatories to published leaflets summoning a meeting suggesting thatthe accused in a pending case was guilty. Koch.J. at 71 said: “Now,it is true that the name of the petitioner does not appear in the noticeconvening the meeting, and it may be that the word "murder" wasnot used intentionally, but the use of that word in the notice for whichthe respondents were responsible was bound to create theimpression that the person charged or who would be charged wasguilty . . .and thus prejudice that person in obtaining a fair trial". Therespondents were found to be guilty of "interfering with the dueadministration of justice" and fined.
In The Queen v Peries et al(18) the respondents admitted they hadno cause to show why they should not be dealt with for publishingin their newspaper comments on a pending case which were likelyto interfere with the administration of justice. They expressed theirdeep regret and tendered apologies to the Court. The firstrespondent, the editor, accepted full responsibility for the offendingpublication, although he had not seen the report prior to publication.The report had been passed for publication by a sub-editor in thebelief that the correspondent's report was accurate. With regard tothe submission of the sub-editor that he was unaware that thequestion of admissibility of a confession by the accused had beenargued in the absence of the jury, T.S. Fernando,J. at p.373remarked that the sub-editor had "not observed the ordinary cautionthat should have presented itself to the mind of anyone holding aposition like his when he read the reference to preliminary argumentsabout admissibility. The editor had submitted an affidavit from thecorrespondent that he had not personally attended Court and thatthe report had been prepared by his younger brother. He said thathe had been reporting proceedings in court for about two years andthat if he had been aware that argument took place in the absenceof the jury, he would not have forwarded the report in the form inwhich it was sent. T.S. Fernando,J. at p. 374 said that in that casetoo there did not appear to have been "an exercise of the ordinarycaution" to which he had earlier referred to. T.S. Fernando,J. (G.P.A.Silva,J. agreeing) said: "While we are ready to accept the position
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that the respondents did not intend to interfere with the arirr: lustrationof justice, it is undeniable that the publication actually made wascalculated to prejudice the minds of the public and, more to the point,the minds of the jurors trying the case, Indeed that much is admittedin terms in the affidavits presented by or on behan of therespondents. In these circumstances, faking into account the promptexpressions of regret and the apologies tendered, we deemedit sufficient to sentence each of the respondents to pay s fine ofRs 500 with a default sentence in the case of the 1st respondent(editor) of a term of two months simple imprisonment."
In Attorney-General v Vaikunthavasan (17) the respondent who wasthe editor, printer and publisher of a newspaper had published anarticle which was likely to prejudice the fair trial of a case that wasthen pending before a Magistrate's Court. He admitted the offence,but tendered his apologies to Court and explained that he hadrecently started the paper without any previous experience ofjournalism. Nagalingam.J. made the rule absolute but imposed "nofurther punishment." Basnayake, J. (Gunasekera, J. agreeing},however, taking into account the mitigating circumstances to notimprison the respondent, imposed a fine. It seems that as the editor,printer and publisher, the respondent was guilty of recklessness ornegligence as to the result of the statement.
I hold that in this case the respondent had no intention to prejudicethe case before the court or to obstruct or impede the administrationof justice. I am also of the view that he did not know that thestatement he prepared might bring about the consequences whichin fact were brought about by his statement. However, i hold thatas a newspaper reporter with certain responsibilities, the respondentought, but failed, to have had the foresight to see that his reportwas likely to cause prejudice to the case before the Cour: and tothe administration of justice as a continuing process. The respondentis, therefore, liable.
For the reasons stated in my judgment, the Rule is made absolute.There remains the question of sanctions. The punishment forcontempt of Court was in ancient times very severe, and on. ;n crueland barbarous. The old English cases show the ferocity iW:b whichpersons were punished for contempts. Richard de Ca I on wasadjudged to have his right hand cut off and his casties for. hied to
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the King. But the King gave his lands to one of his own varlets andexcused the defendant from losing his hand. Jdmes Williamson wasless fortunate. He was a criminal convicted at the sessions held atChester in October 1684. He threw a stone at the Judges on theBench and had his hand cut off and fixed over the entrance gate ofChester Castle where it remained for some years. The punishmentof the offence has now become comparatively merciful, the severestpunishment being limited to fine or imprisonment although in somecases both are inflicted. It is also possible to bind over the offenderto be of good behaviour or to accept an apology and order therespondent to pay costs Sometimes the rule has been madeabsolute with no further order. Having regard to the fact thatContempt of Court is an offence purely sui generis and one that isvaguely defined; and taking account of the fact that cognizance ofthe offence involves in this case an exceptional interference with thefundamental right of freedom of speech and expression, includingpublication, guaranteed by Article 14 (1) (a) of the Constitution; andconsidering the fact that the respondent did not have theconsequences of his act as a conscious object of his conduct; andconsidering that, although as a reporter he had duties andresponsibilities yet his role in the publication was a comparativelysubordinate one, no punishment is imposed on the respondent.
Rule made absolute.
No punishment imposed.