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Supreme Court of Sri Lanka |
] [Hide Context] 134
RE GARUMUNIGE TILAKARATNE
SUPREME COURT
FERNANDO, J.
AMERASINGHE, J. AND
DHEERARATNE, J.
S.C. RULE 1 OF 1990
JANUARY 25, 1991.
Contempt - Art. 105(3) of the Constitution - News item contributed by
reporter - Imputation pre-judging result of pending inquiry
by Supreme Court
into petition challenging Presidential election - Meaning of words - "Causing
publication" - Reporter's
responsibilities
- "Intention to 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
made by a Member of Parliament, at a party political
meeting. The report was
published almost verbatim. The M.P. was reported as stating that the pending
inquiry by the Supreme Court
into a petition filed by the leader of his party
had already been decided and that if the petitioner 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 under Article 105 (3) of the Constitution to punish
contempts of
Court, the respondent pleaded "not guilty on the following grounds:
135
(1) that the words were harmless
and did not constitute an act of contempt;
(2) that the words, having been uttered by a politician at a political meeting,
would not have been taken seriously by the readers;
(3) that the article having been published on the second page amidst
advertisements would not have had a serious effect;
(4) that he did not cause the publication, the responsibility for publication
being that of the editor, who had already accepted
liability and had been
punished for contempt;
(5) that he did not intend to publish the statement or to be disrespectful to
the Court or bring it into disrepute or to obstruct
the Petitioner's case.
Held:
(1) The words constituted an act of contempt.
Per Fernando, J: "The "clear implication" of the statement that if the
petitioner did not obtain the relief prayed
for that would be the end of
justice, is that "if the Court thought differently . . .that decision would be
so unreasonable
or perverse as to be a travesty of justice. The statement as a
whole therefore not only usurps the function of the Court, but is
calculated to
compel or influence the Court to reject the respondent's case even before it is
heard: it seeks to exert pressure
on the Court to come to a decision favourable
to one party and tends to affect witnesses who may be called to give evidence in
future. It is calculated to obstruct or interfere with the due course of justice
. . ."
Per Amerasinghe, J: "The statement in question is an act of contempt because it
involves an interference, or a likely interference,
with the due administration
of justice, both in the particular case of the election petition, by interfering
with potential 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 law. " what imputation, including any implication or
inference, is conveyed
by any particular words is to be determined by an objective test, that is by
tile meaning in which responsible
readers of ordinary intelligence, with an
ordinary man's general knowledge and experience of worldly affairs, would
understand
them, unfettered by any strict rules of construction. . ." "The rule
against prejudgment operates even though there may
be no risk of prejudice in
the particular case because it is likely to produce escalating, unfavourable
reactions in others."
"It is not permissible for anyone to pre-judge issues in
pending causes and thereby venture to supplant the authority of courts
. . .To
permit others to arrogate to themselves, the right to adjudicate upon matters
that are before a court of law would be to
place the very structure of ordered
life, which depends upon the pacific settlements of law by courts of law, in
jeopardy."
"The law of contempt does not prevent the publication of genuine
criticism and comment . . .I am of the view that the article
in question is way
beyond the permitted limits of comment. . ."
(2) Although the context in which the words in question are relevant, including
who the 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,
136
since the statement had been
expressly attributed to the speaker who was a Member of Parliament, "the average
reader"
would "attach no value to it". "Undoubtedly the personality or position
of the speaker, and the occasion on which
he speaks, may be of some relevance;
considerable licence may perhaps be 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 public would be minimal ..."
(I am not
prepared) "to take judicial notice . . . that the public of Sri Lanka or the
readers of the Divaina consider politicians
or any other category of persons to
be either intrinsically untruthful or unreliable, or worthy of credit. Apart
from Parliamentary
privilege, politicians have no greater freedom of speech, and
are subject to no less stringent restrictions thereon in regard to
contempt of
Court, than other citizens."
Per Amerasinghe, J: "I agree . , .that, upon the application of the de minimis
principle, there can be no contempt of which
a court would take cognizance if
the obstruction or prejudice is not real but, rattier, trifling, far fetched,
remote or merely
theoretical and in that sense technical . . .As far as I can
ascertain, there is nothing in the decided cases supporting the proposition
that, merely because a statement comes from a politician at a political meeting,
the de minimis principle should become automatically
applicable. I am reluctant
to accept the invitation to relegate the speeches of all politicians made at all
political meetings
to such a lowly position."
(3) The fact that the article appeared on the second page of the Divaina was of
no significance.
Per Fernando, J: "The argument that the news item was published on the second
page and would, despite its prominent headline,
have escaped the attention of
the average reader must be mentioned only to be rejected; that is at most only a
mitigating circumstance
..."
Per Amerasinghe, J: ". . . This may be a mitigating circumstance. But even on
tie second page, it did present a real risk of
prejudice . . ."
(4) Although the editor had accepted full responsibility and had been convicted
of the offence of contempt, the respondent, as reporter,
"caused" the
publication and was, therefore, also liable.
Per Fernando, J: "The reporter who initiated the offending item is an essential
link 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 to an
exception
in regard to reporters who play only a subordinate and mechanical role
. . .* (having drawn a distinction based on Borrie &
Lowe's three types of
reporters, 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
responsible for the finished product: that responsibility is not diminished by
reason
of a few finishing touches put by the editorial blue pencil. During the
preceding year, he was not paid for submitting 250 reports,
but only for what
was published. He therefore caused the publication of the offending report".
Per Amerasinghe, J; "True enough, in the preceding year, only 35 of the 250
reports submitted by him had been made use of by
the newspaper. Yet, the
respondent's
137
offending report, albeit one of
the exceptional pieces he turned out, was actually published in the newspaper.
The reporter in this
case did much more than supply information: He was the
author of tie article and in every sense he was a party to the publication
. .
.The activities of the respondent may not have been the cause of the contempt,
but at least it was a concurrent cause. His
activity in this case, no less than
that of the editor completed the causal explanation in the action in question .
. .The action
of the editor in deciding to publish the report of the respondent
did not break the causal explanation . . ."
(5) The fact that the respondent did not intend the publication or its meaning
and consequences was of no avail. The respondent
did intend the publication.
Per Fernando, and Amerasinghe, JJ; on the facts of the case that the respondent
did 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 the respondent intended a particular meaning or effect . . ."
Per Amerasinghe, J: "A person is not guilty of the offence of contempt unless
there was mens rea with respect to each material
element of the offence . . ..
With regard to publication, this means that the respondent desired the
publication or that he was
"heedless of the risk that publication was highly
probable, or, having regard to his past experience that some of his
contributions
were published, that publication was a reasonable probability."
With regard to the meaning and effect of the words, "it
is not sufficient for a
respondent to establish that he had no intention to scandalize or to interfere
with the course of justice
if it is established as a fact or inferred from the
circumstances that his conduct was an antecedent but for which the result in
question could not have occurred and that he foresaw or ought on account of his
position to have foreseen that the result was at
least a reasonable possibility
. . . The respondent had no intention to prejudice the court or to obstruct or
impede the administration
of justice . . .he did not know that the statement he
prepared might bring about the consequences which in fact were brought about
by
the statement. However, I hold that as a newspaper reporter with certain
responsibilities, the respondent ought, but failed,
to have had the foresight to
see that his report was likely to cause prejudice to the Court and the
administration of justice as
a continuing process. The respondent is, therefore,
liable."
(6) The Rule was made absolute but no punishment was imposed.
Per Fernando. J: "Considering the serious nature of the offence and that the law
on this point has long been settled and is
free of doubt, it is a matter for
regret that the respondent did not even at the close of the argument,
acknowledge his offence
and tender an apology. However, as the editor had
already accepted full responsibility, and considering the Respondent's indigent
circumstances, we refrained from imposing any punishment."
Per Amerasinghe, J: "It is because the protection of the due administration of
justice and not the advancement of the interests
of the Judges is the law of
contempt that an apology to the Judges is irrelevant and of no avail in deciding
whether the actus
reus of the offence has been established." The absence of an
apology would certainly be "noticed". But is the apology
made merely because the
respondent is reduced to a situation of fear and humility? "Having regard
138
to the fact that Contempt of
Court is an offence purely sui generis and one that is vaguely defined; and
taking account of the fact
that the cognizance of the offence involves in this
case an exceptional interference with the fundamental right of freedom of speech
and expression, including publication . . .and considering the fact that the
respondent did not have the consequences of his act
as a conscious object of his
conduct; and considering that, although as a reporter he had duties and
responsibilities, yet his
role in the publication was a comparatively
subordinate one, no punishment is imposed on the respondent.
Cases referred to:
(1) Re Armand de Souza (1914) 18 N.L.R 33, 38, 41, 45, 47
(2) Re Hulugalle (1936) 39 N.L.R. 294, 303, 308 in fin.
(3) Hewamanne V. De Silva (1983) 1 Sri LR 1 34, 79, 107, 110, 111, 134 et.
seg. 41 156- 161.
(4) R.V. Evening Standard (1954) 1 Q B 578 (1954) 1 All E.R. 1026.
(5) R.V. Griffiths en P.A - (1957) 2 Q B 192, 202, 203.
(6) R.V. Odhams Press Ltd. ex. P.A - G. (1957) 1 Q.B 73, 80 (1956) 3 All
E.R. 494.
(7) R. V. Grey (1900) 2 Q.B. 36
(8) Reginald Perera V The King (1951) 52 N.L.R. 293 (P.C). (1951) A.C.
482.
(9) St. James Evening Post Case (1742) 2 At. K. 469, 471.
(10) Ex. P. Jones 1806 13 Ves. 237, 239.
(11) Mcleod V. St. Aubyn (1899) A.C. 549.
(12) Abdul Wahab V A.J. Perera (1936) 39 N.L.R. 475, 476,
(13) A.G. Larapathy V. Mob Mel (1936) 6 C.L.W 148.
(14) Jayasinghe V. Wijesinghe (1938) 40 N.L.R. 68, 71.
(15) Re Ratnayake (1938) 40 N.L.R. 99.
(16) Veeraswamy V. Stewart (1941) 42 N.L.R. 481, 482.
(17) A.G. V. Vaikunthavasan (1951) 53 N.L.R. 558, 564, 655.
(18) R V. Peiris (1964) 68 N.L.R. 372, 373, 374.
(19) Re S.A. Wickremasinghe (1954) 55 N.L.R. 511, 512, 513.
(20) Miller V. Knox (1878) 4 Bing. N.C. 589.
(21) Re Clement, Republic of Costa Rica V. Erlanger (1876) 46 L.J. Ch.
375, 385.
(22) In re Maria Annie Davies (1888) 21 Q.B.D. 236, 239.
(23) Greenwood V The Leather - Shod Wheel Co. Ltd. (1898) 14 T.L.R. 241.
(24) R V Almon (1765) Wilmots Notes 243, 270, Wilmots Notes 97 E.R. 94.
(25) Kandaluwe Sumangala V. Mapitigama Dharmadutha et. al (1908) 11 N.L.R
195,201.
(26) R V. Davison (1821) 4 B & A 329, 333, 335.
(27) In re Johnson (1887) 20 Q.B.D. 68, 74.
(28) Johnson V. Lyrant (1923) 3 S.C. 789, 790.
(29) A.G. V. Times Newspapers 1974 A.C. 273, 298, 301, 302, 304, 309,
322, 323.
(30) A.G. V. Leveller Magazine Ltd. (1979) A.C. 440, 459.
(31) Ex pane Fernandez (1861) 30 C.B.N.S. 3, 56 - 57; 1861 30 L.J.C.P.
321, 332.
(32) Rex V. Clarke (1910) 103 L.T. 636.
(33) In re Jayatilaka (1961) 63 N.L.R. 282, 288.
(34) In re Ragupathy (1945) 46 N.L.R. 297, 298, 299.
(35) R V. Lady Lawley (1730) 2 Str. 904.
(36) R V. Hall (1776) 2 W. Bl. 1110.
(37) R V. Steveton (1802) 2 East 362.
(38) R V. Loughran (1839) 1 C & D. 79.
(39) R V. Talley (1875) 82 C.C.C. 518.
139
(40) Lewis V. James (1887)
3 T.L.R. 527
(41) R. V. Gray (1803) 23 N.Z.L.R. 52.
(42) Spurrell V. De Rechberg (1895) 11 T.L.R. 313.
(43) Littler V. Thomson (1939) 2 Beav 129, 131.
(44) Schering Chemicals Ltd., V. Falkman Ltd. and others (1981) 2 all
E.R. 321, 339, 348.
(45) Vidyasagara V. The Queen 1963 A.C. 589 (1963) 65 N.LR. 25 (P.C.)
(46) New Statesman Case (1928) 44 T.L.R. 301.
(47) R V. Duffy, Ex P Rash (1960) 2 Q.B. 188.
(48) Attorney-General V. B.B.C. (1981) A.C. 303, 342.
(49) Vine Products V. Green (1965) 3 W.L.R. 791.
(50) Davies, ex P. Delbert Evans (1945) 1 K.B. 442.
(51) Attorney-General V. B.B.C. (1981) A.C. 303, 335.
(52) Hunt V. Clarke (1889) 58 L.J.Q.B. 490, 492.
(53) In re Pall Mall Gazette, Jones V. Flower (1894) 11 T.L.R 122.
(54) Grimwade V. Cheque Bank Ltd. (1897) 13 T.L.R. 305.
(55) R.V. Tibbits (1902) 1 K.B. 77.
(56) Birmingham Vinegar Brewery V. Henry (1894) 10 T.LR 586.
(57) R. V. Parke (1903) 2 K.B 4 32, 436, 437.
(58) In re Finance Union (1895) 11 T.L 167.
(59) In re Tyrone Election Petition (1873) Jr. R. 7 C.L 242.
(60) In re Montgomery Election Petition (1892) 9 T.L.R. 93.
(61) In re Pontefract Election Petition (1893) 9 T.L.R 430.
(62) Ambard V. Attorney-General for Trinidad and Tobago (1936) A.C. 322,
335.
(63) Metropolitan Police Commissioner, ex p. Blackburn (1968) 2 Q.B 150,
155.
(64) Re FA. Capper and A.A. Capper Proprietor and Publisher of Times of
Ceylon (1896) Browne 317, 319.
(65) Chambers V. Hudson Dodsworth & Co. (1936) 2 K.B. 595.
(66) Carl-Zeiss Stiftung V Rayner & Keeler Ltd., (1960) 1 W.L.R 1145.
(67) A.G. (N.S.W) V. John Fairfax & Sons Ltd., (1980) 1 N.S.W.L.R 362,
367.
(68) In the matter of the Rule on Armand de Souza (1914) 18 N.LR. 41, 45,
47.
(69) Anon. (1731) 2 Bam. K.B. 53.
(70) Powis V. Hunter (1832) 2 L.J Ch-31.
(71) Mathews V. Smith 1844 3 Hare 331.
(72) In re General Exchange Bank. (1866) 12 Jur. (N.S.) 465.
(73) In re London Flower Co. Ltd., (1868) 17 L.T. 636.
(74) Vernon V. Vernon (1870) 40 L.J. Ch. 118.
(75) Buenos Ayres Gas Co. V. Wilde (1880) 42 L.T. 657.
(76) Metropolitan Music Hall V. Lake (1889) 58 L.J. Ch. 513.
(77) Lawrence V. Ambery (1891) 91 L.T. Jo. 230.
(78) In re Rochester Election Petition (1892) Times Dec. 9.
(79) In re Evening News and Post (1892) Dec. 9.
(80) In re Martindale (1894) 3 Ch. 193.
(81) In re Carlain Newspapers, Duncan V. Sparling (1894) 10 T.LR. 353.
(82) Ex Pane Josfer (1894) Times, February 5.
(83) In re E. Wilson Gates (1895) 11 T.L.R. 204.
(84) Kelly & Co. V. Pole (1895) 11 T.LR. 405.
(85) Fielden V. Sweeting (1895) 11 T.L.R. 534.
(86) R. V. Payne and Cooper (1986) 1 Q B. 577.
(87) Fairclough V. Manchester Ship Canal Co. (1896) 13 T.L.R. 56.
(88) In re Hooley, ex p. Hooley (1899) 79 L.T. 706.
(89) Stew V. India Rubber Co. Ltd (1900) 44 Sol. Jo. 295.
140
(90) In re New Gold Coast
Exploration Co. (1901) 1 Ch. 860.
(91) Phillips V. Hess (1902) 18 T.LR. 400.
(92) In re Marquis Townshend (1906) 22 T.L.R. 341.
(93) R V. Daily Mail (1907) Times, Jan. 15.
(94) Ex P. Starck (1910) Times, Feb. 10.
(95) Dyce Sombre (1849) 1 Mac & G. 116, 41 E.R. 1209.
(96) A-G V. Butterworth (1963) 1 Q.B. 722, 726.
(97) S. V. Van Kiekerk (1970) S.A (3) 655.
(98) Re O 'Corner, Chesshire V. Strauss (1896) 12 T.LR. 291.
(99) R. V. Evening Standard Co. Ltd. ex p., A-G (1954) 1 All E.R 1026.
(100) R V. Thomson Newspapers, ex p. A - G (1968) 1 All E.R. 268
(101) R V. Bolam, ex p. Haigh (1949) 93 Sol. Jo - 220
(102) 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 the 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 in support of the Rule.
Romesh de Silva, P.C. with Shantha Perera, Palitha Kumarasinghe, Miss Saumya
Samarasekera, H. Amarasekera and G. Gunawardena for respondent.
K.N. Choksy, P.C. with L.C. Seneviratne, P.C. and S.C. Crosette - Tambiah
for 1st respondent in S.C. Election No. 1/89.
March 14, 1991.
FERNANDO. J.
The Respondent was charged with having unlawfully and improperly caused the
publication of a news item in the "Divaina"
newspaper of 12.11.90, to the effect
that Mr. Dharmasiri Senanayake, M.P., had stated, in a speech made at
Ambalankana, Aranayake,
that the Presidential Election petition had already been
proved and that if the petitioner did not succeed it would be the end of
justice
in this country: that these words contained an imputation that the allegations
contained in the aforesaid petition have
already been proved and that if the
petitioner is denied success in that petition, it would amount to a total
negation of justice
in this country; and that the Respondent had thereby
committed a contempt of this Court punishable under Article 105(3) of the
Constitution. He pleaded not guilty.
The editor of the newspaper had previously pleaded guilty to a charge of
contempt arising out of the same publication. In an affidavit
filed in these
proceedings, he stated that he did so as he accepted full and sole
responsibility for that publication. Both the
editor and the Respondent have
explained the Respondent's position: in relation
141
to the newspaper and this
particular publication. The Respondent is the Aranayake correspondent of the
"Divaina", but
is not an employee; he is paid on a piece-rate basis, and had,
received an average income of Rs. 40/- per month during the preceding
year: out
of about 250 reports submitted by him, only 35 extracts or summaries were
published - less than Rs. 21- per report, and
less than Rs. 15/- per
publication. His function was only to submit accurate, factual reports of
important events in his area,
which he did knowing and believing that defamatory
and other offending matter would be deleted by competent persons engaged for
that purpose by the newspaper. It was claimed that such reports were
confidential and meant only for the Editorial staff, and were
not meant for
publication though at the sole discretion of the Editorial staff any report may
be published either in toto or part.
In this instance, it is common ground that
substantially the whole of the report was published, with the addition of a
headline
- "We too are ready for any election" and that the news item was
attributed to the "Aranayake correspondent".
It is the Respondent's position that the report (and the news item) was a true
and accurate account of Mr. Senanayake's speech;
there were four supporting
affidavits from persons who swore that they were present at the meeting. If the
report was false, that
would increase his culpability, but since the learned
Attorney-General did not seek to tender any evidence, oral or documentary,
to
establish that this was a false report, it is unnecessary to consider- whether
the report was false, and for the purpose of
this case it will be assumed that
Mr, Senanayake did utter the offending words.
It was submitted by learned President's Counsel for the Respondent that the
charge had not been established, for reasons which can
be summarised as follows:
1. The Respondent's duty was only to transmit the report, and he had performed
no function in regard to its publication; he had
therefore not "caused the publication" of the offending passage, and it was the
editor, and/or the Editorial staff, and/or
other employees, who had caused the
publication;
2. The Respondent had no intention either of publishing the offending passage,
or of causing any prejudice to the pending Presidential
Election petition;
142
3. Even if the words uttered by
Mr. Dharmasiri Senanayake constitute a contempt, yet the news item expressly
attributed those words
to him; he was a politician, holding the office of
Assistant Secretary of the Sri Lanka Freedom Party, whose leader was the
petitioner,
in the Presidential Election petition; those words had been uttered
in the course of a political speech made at a meeting of his
political
supporters, for political purposes or as political propaganda; the effect of the
words in regard to the pending litigation
had to be determined by reference to
the ordinary or average reader of the "Divaina"; such reader would not believe
or
attach importance to a political speech made in those circumstances; it would
therefore have no effect on the pending litigation.
Further, the article in
question was published on the second page, which mainly contained
advertisements, and most readers, even
if they did look at that page, would not
have read the entire article.
Re de Souza. (1), Re Hulugalle (2), Hewamanne V. de Silva (3), R V Evening
Standard.(4), R V Griffiths (5) and R V Odhams Press
Ltd (6) were cited in
support.
The offending words are clear and unambiguous. They mean that in the pending
Presidential Election petition (even before the commencement
of the case of the
respondent) the petitioner's allegations have been established. It is the
constitutional power, duty and function
of the judiciary (in this case, of the
Supreme Court) to decide whether a litigant has established his case. Even
though it might
be permissible in some circumstances for a litigant to express a
view as to the merits of his case, others are certainly not entitled
to give
public expression to such opinions. But in this case it has also been said that
if the petitioner did not obtain the relief
prayed for, that would be the end of
justice - the clear implication is that if the Court thought differently at the
end of the
case that decision would be so unreasonable or perverse as to be a
travesty of justice. The statement as a whole therefore not only
usurps the
function of the Court, but is calculated to compel or influence the Court to
reject the respondent's case even before
it is heard; it seeks to exert pressure
on the Court to come to a decision favourable to one party, and tends to affect
witnesses
who may be called to give evidence in the future. It is "calculated to
obstruct or interfere with the due course of justice"
(R V Grey, (7); Perera V
The King (8).To intimidate
143
by words is no less serious than
to intimidate by force. Trial must be 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 may affect its due adjudication, although much greater latitude is
permitted thereafter (Borrie & Lowe, Law of Contempt,
2nd edition p. 55).
1. Did the Respondent "cause the publication" of the offending words?
Particularly because sole responsibility has been
accepted by the editor,
learned President's Counsel argued that it was the editor and other employees
who decided whether or not
the news item should be published, and therefore that
it was they who published and/or caused the publication of the news item;
the
Respondent was no more than a conveyor of information, and had no control over
publication. He conceded, however, that if the
editor decided to publish an
article or a letter to the editor, the contributor thereof could properly be
said to have "caused
the publication" even though publication was entirely in
the editor's discretion. It is settled law that the chain of causation
extends
to the author of the offending item; even employees who perform ancillary or
mechanical functions unconnected with the
contents of the offending item have
been held liable, despite the absence of knowledge of such contents. Thus in the
St. James
Evening Post case (9), and in Ex p. Jones, (10), the printer of the
offending publication was held liable despite ignorance of the
contents. The
reporter who initiated the offending item is an essential link 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 to an exception
in regard
to reporters who play only a subordinate and mechanical role:
"First, there is the reporter whose sole responsibility is to gather and collect
all the available information on a particular
topic, but who will neither be
expected to appreciate the significance of such information nor bear any
responsibility for the
final publication. Second is the type of reporter who
being experienced, will not only be expected to appreciate the significance
of
the information, but whose reports will be published more or less as they stand.
Third is the reporter who is not only responsible
for collecting information,
but who will also write the whole article himself."
144
"The first reporter cannot be
considered to be guilty since he will lack the necessary mens rea - he cannot be
said to intend
to publish the information otherwise than to the editor and
neither will he have committed the actus reus, since he cannot be said
to have
published the information nor to have caused it to be published; for he bears no
responsibility for the final publication."
(Borrie and Lowe, Law of Contempt,
2nd edition, p. 260).
The distinction is between the unskilled worker who merely collects the
essential raw materials, and the craftsman who creates the
finished product
using those materials. The Griffiths case is an example of the first category,
where the reporter took no part
in the preparation of the offending article; he
merely collected items of news in London and sent them to New York where it was
decided what, if any, use was to be made of them; the article was written in New
York. The Evening Standard and the Odhams Press
cases are examples of the second
and third classes. If the Respondent had been engaged in gathering information
as to the views
of members of the public and public figures in regard to, for
instance, litigation, for the purposes of an article to be written
by another,
the fact that the article contained portions of the material collected by the
Respondent would probably have put him
into the first category. Here the news
item, apart from the headline is substantially the same as the report submitted
by him,
and he is responsible for the finished product; that responsibility is
not diminished by reason of a few finishing touches put by
the editorial blue
pencil. During the preceding year, he was not paid for submitting 250 reports,
but only for what was published.
He therefore caused the publication of the
offending report.
2. Then it is said that the Respondent lacked the intention to publish the
offending words and to cause any obstruction or prejudice
to pending litigation.
The first limb of this submission is not borne out by the facts, and the second
is clearly untenable in
law. The Respondent submitted reports not merely in the
hope but with the object of publication, in whole or in part; may be, it
was
only a pittance that he received for his labours, but publication was his aim.
The fact that he did not know this report would
be published, or that he
considered the probability of publication to be low, does not detract from his
intention and
145
desire that it be published, it
was urged that the report was confidential and intended only for the editorial
staff, but this is
contradicted by the fact that payment was not for what was
submitted, but only for what was published. Intention to publish is a
necessary
ingredient: thus a Barrister who lent a copy of a newspaper, without knowledge
of its offending contents, was held not
guilty of contempt because he never
intended to publish (McLeod v St Aubyn, (1899) A.C. 549). The Respondent did
intend to publish
the report. The fact that he had no intention whatever "of
causing disrepute or disrespect to the Supreme Court or any Court
and/or of
causing any obstruction to the Election Petition case" is irrelevant, because
all that is required is that the publication,
viewed objectively, is
"calculated" to obstruct or interfere with the due course of justice", and this
has been
laid down in a stream of previous decisions (Wahab v Perera(12)] A.G. v
Laxapathy(13) ;Jayasinghe v Wijesinghe (14) ; Re Ratnayake
(15) ; Veeraswamy v
Stewart(16) ; A. B. v Vaikunthavasan (17); R v Peries(18).)
To establish a charge of contempt it is not necessary to prove that the
Respondent intended a particular meaning or effect; intention
is not an
ingredient, though often an aggravating circumstance, relevant to punishment.
Finally, learned Presidents Counsel submitted that despite the objectionable
nature of the words themselves, their effect on the
average reader of the
"Divaina" had to be ascertained according to the principles laid down in the
three local decisions
cited by him; since the statement had been expressly
attributed to Mr. Senanayake, such reader would attach no value to it, in the
circumstances referred to earlier; and therefore the statement would have no
effect whatsoever on the pending litigation; if, however,
the statement had been
made by a retired Judge of this Court or by a Professor of Law, the position
would have been entirely different.
When reminded that Mr. Senanayake was
described as the Assistant Secretary of the Sri Lanka Freedom Party, Counsel
replied that
high office did not result in greater credibility so far as
politicians were concerned. This led him into all sorts of difficulties;
if the
statement had been made by the petitioner herself, or if the converse had been
stated by the respondent, would it have had
no effect on the reader ? If it had
been made by a practising lawyer, or a politician-cum-lawyer, or
146
a retired Judge now engaged in
politics, how would its effect on the reader be assessed? Naturally, no clear
answer was forthcoming.
There is neither precedent nor justification for
assessing an impugned statement in this way. Undoubtedly the personality or
position
of the speaker, and the occasion on which he speaks, may be of some
relevance; considerable licence may perhaps be extended to those
in the position
of a Court Jester of old, or of tender years, or mentally deficient persons,
since Theo effect of their statements
on the public would be minimal. Apart from
such exceptional cases, I do not think that any category of adults of sound mind
can
be granted such an extensive privilege of making, with impunity, statements
prejudicial to pending litigation. Nor am I prepared
to take judicial notice of
a sweeping proposition that the public of Sri Lanka, or the readers of the
"Divaina", consider
politicians or any other category of persons to be either
intrinsically untruthful or unreliable, or worthy of credit. Apart from
Parliamentary privilege, politicians have no greater freedom of speech, and are
subject to no less stringent restrictions thereon
in regard to contempt of
Court, than other citizens. The decisions of this Court, in this branch of the
law of Contempt, have never
granted or recognised any such privilege or immunity
of politicians. Jayasinghe v Wijesinghe dealt with a notice of a meeting to
be
held under the president ship of a Member of the State Council. In Re Ratnayake
an Advocate-cum-State Councilor was found guilty
but discharged with a warning
where he had (in his capacity as an ordinary citizen) written to a Judge
informing him that a party
to a pending case, against whom a warrant had been
issued for failure 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 an attempt to influence
the Judge upon a matter publicly before him,
and it is very necessary, in my
opinion, that (it) should be the subject of judicial action, and it is of
greater importance in
this particular case where the respondent is not only an
Advocate but is a Member of the State Council. Persons in the position
of the
respondent must be made to realise that they cannot interfere in the course of
justice, and that if they do so interfere,
or attempt to interfere, they will be
punished."
147
The rationale for this view
appears from Wahab v Perera (12) :
"This, we understand, is the first case of its kind that has occurred in the
Island. We hope that it will be a very long time
before there is another. The
people of this country have travelled far along the road which leads to the
management of their own
affairs . . . and must realise that these people who
have the privilege of making the laws which govern them have also the stern
obligation of obeying those laws."
A politician was also found guilty of contempt of court in Re Wickremasinghe
(19), and this Court had no doubt that at least some
listeners might be
convinced by him:
"the object of this branch of the law, of course, is not the protection of the
personal reputation of judges but the protection
of the authority of the courts,
which must be preserved in the interests of the community. It is therefore no
less an offence to
scandalise the judiciary generally than to scandalise the
judge or judges of a particular court. No person who may have been persuaded
by
the respondent's speech to accept the views he expressed about the judiciary
could continue to have confidence in the impartiality
of the courts of justice."
In Hewamanne v de Silva, (3) the decision turned principally on the question
whether the publication of a notice of motion contained
in an Order Paper of
Parliament was protected by the cloak of Parliamentary privilege, and the
majority thought it was not; however,
the resolution, the contents of which were
held to constitute a contempt of this Court, was to have been moved by the
Minister
of Justice, but the Court did not consider that this opinion of a
politician would have such little effect on the public that it
would not
constitute; a contempt.
Freedom of speech and expression is important, but is not absolute. The public
interest requires that the Judiciary must discharge
its functions, free of bias,
partiality, force, or other public or private influence, thereby ensuring that
every dispute will
be resolved by a fair trial according to law. This branch of
the law of contempt seeks to balance the citizen's freedom of speech
and the
public interest in
148
the resolution of disputes by
independent judicial adjudication. In that context there is no place for trial
by politicians, the
media, hoodlums, or others, and the law of contempt thus
prohibits comments and criticisms which will affect the fairness of a trial
or
usurp the power of the Judiciary; the Constitution and the law do not allow
politicians any greater immunity or licence than
the ordinary citizen (except as
provided by the law relating to Parliamentary privilege).
The argument that the news item was published on the second page and would,
despite its prominent headline, have escaped the attention
of the average reader
must be mentioned only to be rejected; that is at most only a mitigating
circumstance. In the result, the
Respondent's third contention fails.
For these reasons, at the conclusion of the proceedings, the Respondent was
found guilty of contempt of this Court, and the Rule
was made absolute.
Considering the serious nature of the offence, and that the law on this point
has long been settled and is free
of doubt, it is a matter for regret that the
Respondent did not, even at the close of the argument, acknowledge his offence
and
tender an apology, However, as the editor had already accepted full
responsibility, and considering the Respondent's indigent circumstances,
we
refrain from imposing any punishment.
DHEERARATNE J: I agree
AMERASINGHE J:
I have had the advantage of reading the judgment of my brother Fernando, J. in
draft form and I agree that the rule must be made
absolute but that no
punishment shall be imposed.
A Bench of the Supreme Court, in the exercise of its jurisdiction under Article
130 of the Constitution, is currently engaged in
hearing a legal proceeding
relating to the election of the President of Sri Lanka. During that hearing, on
12 November 1990, the
Divaina newspaper reported, under the headline "We too are
ready for election", that Mr. Dharmasiri Senanayake, a member
of Parliament, had
made a speech at Anbalankana, Aranayake, in which he had stated that the case of
the petitioner had already
been proved, and that if the petitioner did not
succeed, it would be the end of justice in the country.
149
The respondent who reported that
speech is charged in this case, in the exercise of the jurisdiction conferred on
the Supreme Court
by 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 Proteus
of the legal world
assuming an almost infinite diversity of forms. Contempt of Court, which has
been irreverently termed a legal
thumbscrew, is so manifold and so amorphous
that it is difficult to lay down any precise definition of the offence (See
Oswald,
Contempt of Court, 1910 3rd Ed. by G.S. Robertson at P. 5; Cf. Glanville
Williams, Textbook of Criminal Law, 1983, 2nd Ed. p. 16,
Miller v Knox (20i per
Williams, J.)
Because the offence of contempt is amorphous and has no determinate shape or
structure and is virtually unrestrained in the will
of the Court, the
jurisdiction to punish for contempt given by Article 105 (3) of the Constitution
ought to be jealously and carefully
watched and cautiously exercised with the
greatest reluctance and the greatest anxiety (Cf. per Jessel, M.R. in Re
Clements, Republic
of Costa Rica v Erlanger (21); In Re Maria Annie Davies (22);
per Sterling, 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 opposing
or a despising the
authority, justice, or dignity thereof. It commonly consists in a party's doing
otherwise than he is enjoined
to do, or not 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. said that "There are
three different sorts of contempt. One kind
of contempt is scandalizing the
Court itself. There may be likewise a contempt of this Court, in abusing parties
who are concerned
in causes here. There may be also a contempt of this Court, in
prejudicing mankind against persons before the cause is heard."
Lord Radcliffe in delivering the decision of the Privy Council in Reginald
Perera v The King m said that for such an act of contempt
as in the case before
us to be committed "There must be involved some act done or writing published
calculated to bring a
Court or
150
Judge of the Court into contempt
or to lower his authority or something calculated to obstruct or to interfere
with the due course
of justice or the lawful process of the Court."
Oswald (Contempt of Court, 1910 3rd Ed. by G.S. Robertson) at p.10 said that "To
speak generally, Contempt of Court may be
said to be constituted by any kind of
conduct that tends to bring the authority and administration of the law into
disrespect or
disregard, or to interfere with or prejudice parties litigant or
their witnesses during the litigation." This definition was
adopted in 1959 by
the report of the committee of Justice on the subject of Contempt of Court under
the Chairmanship of Lord Shawcross
at p.4 as being one the committee could not
improve on.
Article 105 (3) of the Constitution gives the Supreme Court all the powers of a
superior court of record including the power to
punish for contempt of itself
whether committed in the Court itself or elsewhere. The complaint here is not
that there was a direct
act of contempt committed ex facie curiae but that there
was an indirect, constructive contempt committed outside the Court by the
publication of a statement about a matter that is pending before the Supreme
Court.
The statement in question is said to be an act of contempt because it involves
an interference or likely interference with the due
administration of justice,
both in the particular case of the election petition and, more generally, as a
continuing process, and
thereby constitutes a challenge to the fundamental
supremacy of the law. It is in the public interest that Article 105, through
the
power it confers on the Court to punish for contempt, ensures the fairness of
particular trials and the continuing authority
of the Court. In R v Almon
(24) it was said that the power of punishing for contempt has been given
to the Courts "to keep
a blaze of glory around them, and to deter people from
attempting to render them contemptible in the eyes of the public." This
does not
mean that it is a power given, as Woodrenton, 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, is a fact of "vital importance", although "extremely
difficult to bring home to the minds of some people."
(Cf. Re Wickramasinghe,
(19) at per Gunasekera, 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 v Leveller Magazine
Ltd (30).
151
In Ex parte Fernandez (31)
Willes, J. expressed the principles on which the jurisdiction is to be exercised
in the following admirable,
terms: "We have been urged to be careful of being
misled by our own way of thinking, in the decision of this case, because,
as it
was suggested, our privileges are involved in the question. As that course has
been adopted. I take leave to say that I am
not conscious of the vulgar desire
to elevate myself, or the Court of which I may be a member, by grasping after a
pre-eminence
which does not belong to me; and that I will endeavour to be even
valiant in preserving and 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 to influence the jury, or to keep back or pervert the
testimony of witnesses,
or by other methods according to the emergency of the
occasion to obstruct the course of justice. These powers are given to the
Judges
to keep the course of justice free; powers of great importance to society, for
by the exercise of them law and order prevail;
those who are interested in wrong
are shown that the law is 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 weight
in the
matter. According to my experience, the personal feelings of the Judges have
never had the slightest influence in the exercise
of those powers entrusted to
them for the purpose of supporting the dignity 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 administration
of justice and it is unfortunate
that the offence should continue to be known by a name which suggests to the
modern mind that
its essence is a supposed affront to the dignity of the court.
Nowadays when sympathy is readily accorded to anyone who defies constituted
authority the very name of the offence predisposes many people in favour of the
alleged offender. Yet the due administration of
justice is something which all
citizens, whether on the left or the right or in the centre, should be anxious
to safeguard."
It is because the protection of the due administration of justice and
152
not the advancement of the
interests of the Judges is the concern of the law of contempt that an apology to
the Judges is irrelevant
and of no avail in deciding whether the actus reus of
the offence has been established. In The Attorney-General v Vaikunthavasan
(17)
Basnayake, J. said: "There appears to be an impression that an apology to the
Court erases the effect of a contempt of
this nature. In order to remove that
impression I wish to repeat here the words of Darling, J. in flex v Clarke (32):
"It
is not to the Court that an apology can do any good. Apology is due to the
person whose trial might have been prejudiced, and the
public whose interest it
is to see that justice is fairly administered in this case, and not to the Court
which has no feeling
in the matter." When the Court imposes a punishment for
contempt, it does so, as Abrahams, C.J. said in the matter of the rule
on
Hulugalle (2), "in the interests of the public."
An explanation that there was no ulterior intention to interfere with the course
of the administration of justice, and an unreserved
withdrawal of the
insinuations and an expression of regret, even though belatedly made (see In the
matter of the rule on De Souza
(1)), however, will be relevant, after
determining culpability, in deciding the question of punishment. Moreover, the
absence of
a customary apology to the Judge may, as in re Jayatilake (33) per
Tambiah, J. be regretted as showing a lack of courtesy. (See
also per Keuneman,
S.P.J. in re Ragupathy (34); per Gunasekera, J. in re Wickramasinghe (19) where
the expressions of regret were
not regarded as "sufficient" for the offence
committed in those cases). Its absence would certainly be noticed. (E.g.
see in
the matter of Hulugalle m). But that is another matter.
In this connection it might be observed that the jurisdiction of the Court
should be exercised with care, for, as Oswald, (op cit.
pp. 17 - 18) observes,
"the defendant is usually reduced, or pretends to be reduced, to such a state of
humility, in fear
of more severe consequences if he shows any recalcitrancy,
that he is either unable or unwilling to defend himself as he might have
otherwise done."
What do the words complained of mean? In ascertaining the meaning of statements
published in newspapers, as in the case before us,
I would, with respect, follow
the guidelines proposed by Woodrenton, C.J. in the case or Armand de Souza (1).
They were guidelines
followed 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
153
Ragupathy (34) Woodrenton, C.J.
said: "The Court has itself to interpret the meaning of the language used, and
in doing so
consider how it will be understood by the majority of those whom it
reached. It was published in a daily newspaper. It is clear
that the readers of
such an article as this would not stop to subject it to the minute analysis
which it received at the Bar, or
to consider how far the character of the warp
of one line of criticism was modified by woof of a different texture. They would
read the article as such articles are read every day by ordinary people who have
no time, even when they have the capacity, to carry
out such a process of
balancing, and who would be guided in the long run by the general impression
which the article left in their
minds." If, with respect, I might amplify what
Woodrenton, C.J. was saying, I would suggest that what imputation, including
any
implication or inference, is conveyed by any particular words is to be
determined by an objective test, that is, by the meaning
in which reasonable
readers of ordinary intelligence, with an ordinary man's general knowledge and
experience of worldly affairs,
would understand them, unfettered by any strict
legal rules of construction. The imputation convered is not necessarily
determined
by the meaning which the majority of the readers of the Divaina
understood them. Nor is the imputation to be determined by what
Mr. Senanayake,
the reporter or the editor intended.
Applying that test to the language before us, it seems to me that the article in
question means that the Judges in the proceeding
before the Court had already
made up their minds. At the relevant time the respondent had not yet led his
evidence. What would
the majority of people who read that article have thought?
I think they would have thought it of little or no use to say anything
more in
the case. Some of them who were potential witnesses might have considered it
futile to testify and might, therefore, have
been deterred from coming forward
to give evidence. This would prevent the respondent in the matter pending before
the Court from
pursuing a full presentation of his case. Deprived of all the
relevant evidence it might have otherwise considered, the Court would
be impeded
in conducting a fair proceeding. The statement, therefore, interferes with the
administration of justice. Any act which
interferes or attempts to interfere
with witnesses, whether it be by threat, persuasion or otherwise, interferes
with the course
of justice and is a contempt of court. (Cf. R v Lady Lawley
(35);Rv Hall (36); R v Steventon (37); R. v Loughran (38); R v Talley
(39) ;
Lewis v James (40); In re
154
to Johnson (27). R v Gray (41);
Oswald, op. cit. 7, 52 and 89;) Both in Spurrell v De Rechbery(42) and in
Greenwood v The Leather-shod
Wheel Co. Ltd. (23) statements which were held to
have been likely to have deterred witnesses from giving evidence were therefore
regarded as acts of contempt. As Lord Langdale M.R. said in Littler v Thomson
(43): "if witnesses are ... deterred from coming
forward in the aid of legal
proceedings it will be impossible that justice can be administered. It would be
better that the doors
of the courts of justice were at once closed."
On the other hand, in the hope that their evidence may retrieve the position,
other witnesses may, in their, albeit mistaken, enthusiasm
tend to exaggerate
their evidence, with equally unsatisfactory results for the particular case and
for the administration of justice
in general. In Abdul Wahab v A.J. Perera et
al. (12), pending a criminal charge against a person, the respondents in a
leaflet
had suggested that the accused was guilty of the offence with which he
was charged. Abrahams, C.J., after reflecting upon the likely
effect of the
statement upon jurors, said that "in a more suitable way possible witnesses for
the prosecution and the defence
may be in the one case influenced to exaggerate
their evidence and in the other actually deterred 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). His Lordship said: "Witnesses in an action
are credible and
reliable or they are not. Our system of trial in which evidence
is elicited by examination and cross-examination provides them means
of
demonstrating the character and quality of a witness." In the circumstances of
that case, the suggestion that prospective
or potential witnesses may be
deterred or discouraged from contributing their testimony was regarded by Shaw,
L.J. at p. 339 as
being "insubstantial".
In the case before me, however, I am satisfied that the statement that the
petitioner's case had been already established would
tend to hold back witnesses
who were prepared to say from their actual knowledge what was at variance with
or in contradiction
of the petitioner's case. There was, therefore, an
interference with the administration of justice and, consequently, an act of
contempt.
155
The result of the matter
proceeding before the Court, it was alleged in the statement in question, was
evident even before the respondent
had submitted his case. If, in such
circumstances, the Judges had already made up their minds, they could have done
so only if
they had been biased. What other meaning could be reasonably given to
the words by the majority of readers? Would such statement
not diminish the
confidence of the public in the Judges in the case before the Court as well as
in the administration of justice
as a continuing process? For what should the
public think of and come to expect of biased judges who make up their minds
before
hearing both sides? In The Road to Justice (1955 p. 73 Sir Alfred Denning
(as he then was) said: "The judges must of course
be impartial. If they should
be libeled by traducers, so that people lost faith in them, the whole
administration of justice would
suffer."
There has never been any doubt that imputing unfairness, bias or lack of
impartiality to a Judge in the discharge of his judicial
duties lowers his
authority and interferes with the performance of his judicial duties and
therefore constitutes an act of contempt.
(E.g. see in re Wickramasinghe(19> per
Gunasekera, J. : In the matter of Armand de Souza (1) ; Vidyasagara v The Queen
(45)
Hewamanne v de Silva (3) per Wanasundera, J. at pp. 78 - 107 and per
Ranasinghe, J. at pp. 134 et seq New Statemsman case (4fi).
Such statement
would, as Wilmot. J. observed in Almon's Case, excite in the minds of the people
"a general dissatisfaction
with all future determinations and indispose their
minds to obey" the Judges. Such statements would, as Wilmot, J. said, "taint
the
fountain of justice so that judgments which stream out of that fountain would be
regarded as impure."
The statement in question also asserts that if the petitioner is unsuccessful,
there would be an end of justice. The relevant sort
of readers, I think, would
regard this is as a kind of ultimatum. If the petitioner's prayer is not
answered, it would be on pain
of unpleasant, ill-boding, and perhaps even
fearful and dire, consequences. There is an undoubted attempt to coerce the
Judges.
Judges, though in no sense superhuman are by training supposed to have no
difficulty in putting out of mind matters which are not
in evidence in a case.
(Cf. per Lord Parker, C.J. in R. v Duffy, ex p. Nash (47). In Attorney-General v
B.B.C. (48) Lord Salmon
at p. 342 said: "I am and have always been satisfied
that no judge would be
156
influenced in his judgement by
what may be said by the media. If he were, he would not be fit to be a judge.
"And Lord Reid
in Attorney-General v Times Newspapers (29) that it is scarcely
possible to imagine a case when comment could influence judges in
the Court of
Appeal or noble and learned Lords in this House. In Vine Products v Green m
Buckley, J. held that the article in question
did not raise a serious risk of
prejudice and that there was no contempt in that case. In Sobering Chemicals v
Falkman Ltd (U)
Shaw, LJ. at p. 339 said: "I cannot see that the fair trial of
the issues in the pending actions would be in any way hampered
or adversely
affected if the programme were shown. The trial is to be by a judge alone; it is
safe to assume he will not be improperly
influenced in any way should he see the
programme or read the manuscript."
However, in Attorney-General v Times Newspapers (supra) a majority of their
Lordships concurred in the view that the article was
a prejudgment of the case,
and so, technically a contempt, although not one worthy of punishment. And
Humphreys, J, in Davies ex
p. Delbert-Evans (50) expressed the view that it was
wrong to publish matter which might embarrass a judge and make it more difficult
for him to do his work. Moreover the view that Judges are not ever likely to be
influenced by the comments of other persons and
that, therefore, there is no
risk of prejudice, is by no means, free from doubt. Thus in Attorney-General v
B.B.C. (57) Viscount
Dilhorne at p. 335 said: "It is sometimes asserted that no
judge will be influenced in his judgment by anything said by the
media and
consequently that the need to prevent the publication of matter prejudicial to
the hearing of a case only exists where
the decision rests with laymen. This
claim to judicial superiority over human frailty is one that I find some
difficulty in accepting.
Every holder of a judicial office does his utmost not
to let his mind be affected by what he has seen or heard or read outside the
court and he will not knowingly let himself be influenced in any way by the
media, nor in my view will any layman experienced in
the discharge of judicial
duties. Nevertheless it should, I think, be recognized that a man may not be
able to put that which he
has seen, heard or read entirely out of his mind and
that he may be subconsciously affected by it."
Woodrenton, J. in Kandoluwe Sumangala v Mapitigama Dharmarakitta et al (25) said
"It is of the highest importance that while
causes are yet undecided, nothing
should be said which could influence the
157
testimony of witnesses, or which
could create any adverse and unjust impression upon the Court. I need scarely
point out that the
latter consideration applies whether the cases are to be
tried by juries or by Judges. For every one who has exercised judicial
office
knows that it is extremely difficult to keep the mind clear from misconception
and free from prejudice, if by some mischance
the Judge has heard private 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 coerce the
judges tended to interfere with the due course of justice
and was therefore an
act of contempt. What is relevant is not the fact that the judges will be
actually or probably prejudiced,
but that the nature of the statement was such
that prejudice might result. In Hunt v Clarke (52) (followed by Roch, J. in
Jayasinghe
v Wijesinghe Cotton, L.J. said: "It is not necessary that a Judge or
jury will be prejudiced, but if it is calculated
to prejudice the proper trial
of cause that is a contempt and would be met with the necessary punishment in
order to restrain such
conduct" (Cf. also per Soertsz. J. in Veerasamy 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 a tendency to
produce an atmosphere of prejudice in the midst of
which the proceeding in the
matter of the election petition must, regrettably, go on, and in that way, it
tends to interfere with
a fair trial of the case. (Cf. per Lord Alverstone, C.J.
in R v Tibbits (55) followed by Soertsz, J. in Veerasamy v Stewart(16.)
The
statement also tends to interfere with the administration of justice as a
continuing process.
It was suggested by learned President's Counsel for the respondent that
sometimes certain persons, particularly litigants, prematurely
claim victory for
one party. To do so in this case would be to usurp the functions of the Court
for it is the Supreme Court alone
which is, in terms of Article 130 of the
Constitution, entitled to determine and make orders on a proceeding relating to
the election
of the President. Trial by newspaper or trial by any other medium
than the courts of law cannot be permitted. (See Birmingham Vinegar
Brewery v
Henry (56); R v Parke (57). In re Finance Union (58). Thus prejudgment in a
proclamation (Kandoluwe Sumangala v Mapitigama
et al. (25) or notice
(Jayasinghe v Wijesinghe (14); Abdul Wahab v A.J. Perera
158
et al (12) or a notice followed
by a public meeting (A- G v M. de mel Laxapathy (13) would be actionable as a
contempt of court,
in Kandoluwe Sumanagala v Mapitigama Dharmarakitta et al
(supra) Woodrenton. J. at p. 201 said: "It is of the highest importance
that
while cases are still undecided, nothing should be said which could influence
the testimony of witnesses or which could create
any adverse 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
Montgomery Election Petition
(60) and In re Pontefract Election Petition), (62) during the pendency of an
election petition, the
proprietor of a newspaper published in his journal a
series of articles calculated to interfere with the course of justice and to
prevent witnesses affording him their evidence. It was held that the publication
was a contempt of the Irish Court of Common Pleas.
Whether in a given case the discussion or comments upon a pending case are
unseemly or harmful to the administration of justice,
will depend upon the
circumstances. Each case, as Templeman, L.J. observed in Schering Chemicals v
Falkman Ltd (44) at p. 349 must
be judged on its own merits.
One thing, however, applies to all cases. It is not permissible for anyone to
pre-judge issues in pending causes and thereby venture
to supplant the authority
of courts of law which have been established for the pacific settlement of
disputes and the maintenance
of law and order in Sri Lanka. Why?
It is in the interests of litigants that this should be the case. As Lord Morris
observed in A - G v Times Newspapers (29): "The
courts, I think, owe it to the
parties to protect them either from prejudices of pre-judgment or from the
necessity of having themselves
to participate in the flurries of pre-trial
publicity" Trials by newspapers or any other medium lack the safeguards that are
expected by the parties to be found in legal proceedings such as those provided
by rules of procedure, including the right to reply
or cross-examine, and the
rules of evidence, including the exclusion of hearsay evidence. Trials by
newspapers and other media,
deprive the parties of having their causes
determined impartially and with reference solely to the facts judicially brought
before
a tribunal. The tendency of a media trial is, as Wills, J. put it in R v
Parke (57), is "to reduce the court
159
which has to try the case to
impotence, so far as the effectual elimination of prejudice and prepossession is
concerned."
Looking beyond the particular case, one has to consider the long term effects of
the statement on the administration of justice.
To permit others to arrogate to
themselves the right to adjudicate upon matters that are before a court of law
would be to place
the very structure of ordered life, which depends on the
pacific settlement of disputes by courts of law, in jeopardy. (Cf. per
Lord
Morris in Attorney-General v Times Newspapers (29)). As Lord Diplock observed in
the Times case at pp. 309 - 310 "trial
by newspaper, i.e. public discussion or
comment on the merits of a dispute which has been submitted to a court of law or
on the
alleged facts of the dispute before they have been found by the court
upon the evidence adduced before it, is calculated to prejudice
the requirement
that parties to litigation should be able to rely upon there being no usurpation
by any other person of the function
of that court to decide that dispute
according to law. If to have recourse to civil litigation were to expose a
litigant ... to
public and prejudicial discussion of the facts or merits of the
case before they have been determined by the court, potential suitors
would be
inhibited from availing themselves of courts of law for the purpose for which
they are established."
In the Times Newspapers case (supra) Lord Simon at pp. 315 - 316 explained that
the law of contempt "is the means by which
the law vindicates the public
interest in due administration of justice - that is, in the resolution of
disputes, not by force
or by private or public influence, but by independent
adjudication in courts of law according to an objective code. The alternative
is
anarchy including that feudalistic anarchy which results from arrogation to
determine disputes by others than those charged
by society to do so in impartial
arbitrament according to an objective code."
The rule against prejudgment operates even though there may be no risk of
prejudice in the particular case because it is likely
to produce escalating,
unfavourable reactions in others. As observed by the European Courts of Human
Rights in the Times Case,
the regular spectacle of pseudo-trials in the news
media is likely in the long term to have nefarious consequences for the
acceptance
of the Courts as the proper forum for the settlement of legal
disputes. The reason was explained by Lord Cross of Chelsea in the
Times
160
Newspapers Case (29) (1974) A.C.
273 at pp. 322 - 323 in the following terms: "But why, it may be said, should
such a publication
be prohibited when there is no such risk? The reason is that
one cannot deal with one particular publication in isolation. A publication
prejudging an issue in pending litigation which is itself innocuous enough may
provoke replies which are far from innocuous but
which as they are replies, it
would seem unfair to restrain. So gradually the public would become habituated
to, look forward to
and resent the absence of, preliminary discussions in the
media of any case which aroused widespread interest. An absolute rule
- though
it may seem to be unreasonable if one looks only to the particular case -is
necessary in order to prevent a gradual slide
towards trial by newspaper or
television."
I do not mean that acts done in courts of law cannot ever be the subject of
report, comment or criticism. The law imposes no blanket
of silence on the news
media. There is no total embargo on reporting court proceedings during the
currency of a trial. Fair and
accurate reports of proceedings in open court are
permitted regardless of the risk of prejudice. Nor is there an unqualified
prohibition
on comment and criticism once legal proceedings are over. For, as
Lord Atkin observed 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 (21 at
p. 398). See also per Gunasekera,
J. in re Wickramasinghe (19): "Justice is not
a cloistered virtue: she must be allowed to suffer the scrutiny and respectful,
even though outspoken comments of ordinary men."
In Metropolitan Police Commissioner, ex P. Balckburn (63) Lord Denning, M.R.
said that "It is the right of every man, in Parliament
or out of it, in the
Press or over the broadcast, to make fair comment, even outspoken comment, on
matters of public interest.
Those who comment can deal faithfully with all that
is done in a court of justice. They can say we are mistaken, and our decisions
erroneous, whether they are subject to appeal or not."
Our Courts have consistently taken the view that they are far from averse to
criticism. In the matter of a rule issued on F.A. Capper
and H.A, Capper, the
proprietor and publisher of the Times of Ceylon, (64) , Bonser, C.J. (Lawrie and
Withers, JJ. agreeing) at
p.319 said: "Now, we all as Englishmen are proud of
the freedom
161
of the press. Free criticism is a
condition of the health of the body politic; but free criticism must not be
carried "to undue
lengths. Liberty must not be allowed to degenerate into
licence. The due administration of Justice is the foundation stone of all
our
liberty; and unless justice is purely administered without fear or favour,
existence is not worth having."
Our own Sri Lankan Judges have shared the views of their English brothers on the
Bench. For example, in the matter of Armand de
Souza, (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 to criticize, and to criticize strongly, judicial decisions or
judicial
work, and to bring to the notice of the proper authorities any charge whatever
of alleged misconduct on the part of a
Judge."
Pereira, J. In the matter of the rule on re De Souza (1) said; "I would gladly
welcome fair criticism to the fullest extent
on my orders and judgment as a
Judge of this Court. Reasonable argument and expostulation however is one thing;
the publication
of false or fabricated material in order to hold the Court or
Judge up to odium or ridicule is another."
Indeed, Soertsz, J. in Veerasamy v Stewart (16) regarded the Press as the Courts
partner in the search for justice. At p.486 he
said: "No one desires to fetter
unduly the freedom of the Press, least of all Courts of Law, for the Press can
be, and has
often been a powerful ally in the administration of justice." His
Lordship, however, emphasized that "it is essential
that judicial tribunals
should be able to do their work free from bias or partiality and the right of
accused persons to
a fair trial should be absolutely unimpaired."
In Reginald Perera v The King (8), the Privy Council gave as its final reason
for advising that the appeal be allowed that what
was published was honest
criticism on a matter of public importance.
In re Wickramasinghe (19), Gunasekera, J. quoted the following passage from the
decision in Ambard v Attorney-General for Trinidad
and Tobago (62) "The path of
criticism is a public way: the wrong headed are permitted to err therein:
provided that members
of the public abstain from imputing improper motives to
those taking part in the administration of justice, and are genuinely exercising
162
a right of criticism, and not
acting in malice or attempting to impair the administration of justice, they are
immune." Gunasekera,
J. then added: "While there is no question that judges and
courts are open to criticism, there is no longer any room for doubt
that
scandalizing a 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
would be thoroughly undesirable
that the press should be inhibited from criticizing honestly and in good faith
the administration
of justice as freely as any other institution. But it is
equally undesirable that such criticism should be unbounded."
All the judges in Hewamanne v De Silva and Another (3) stressed the important
role of the press in Sri Lanka, (See especially the
remarks of Ranasinghe, J. at
pp. 173-175).
What is prohibited are comments that are factually incorrect or unfair or
unconcerned with matters of genuine public concern or
which tend to bring the
authority and administration of law into disrespect or disregard and comments
that interfere with or prejudice
the fair trial of a pending cause. The law of
contempt does not prevent the publication of honest and genuine criticism and
comment,
expressed in appropriate terms. (Gray's case (7) Police Commissioner,
ex p. Blackburn per Salmon, J. Hewamanne v De Silva (3) at
p.34 per Wanasundera,
J. and at p. 156 - 161 per Ranasinghe, J, (Cf. In re Capper (64) per Bonser,
C.J.). Comments about pending
cases are not necessarily unseemly or harmful to
the administration of justice and therefore they are not absolutely prohibited.
(Cf. Schering Chemicals v Falkman Ltd (44)). But comments should be postponed if
they may prejudice a fair trial. Cf. per Lord
Reid in A - G v Times Newspapers
Ltd. It may, as Soertsz, J. observed in Veerasamy v Stewart(16) be "poor
comfort" to
be told that although one may not express one self while a case is
pending which may cause prejudice, yet vent may be given to one's
feelings "when
the case has been finally decided so long as one confines oneself to relevant
facts and keeps within bounds."
But, as Soertsz, J. added, "that appears to be
well settled law."
Does this not come into conflict with the important fundamental right of free
speech and expression? In terms of Article 14 of the
Constitution, every citizen
is entitled to the freedom of speech and
163
expression Including publication.
Yet where the exercise of this right would be calculated to create a risk of
prejudice, either
to a particular trial or to the administration of justice
generally, that freedom must, in the interests of society, be curtailed.
The law
of contempt of court operates "untrammeled by the fundamental right of freedom
of speech 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 the permitted
limits of comment since it tended to obstruct or impede
the proceeding before
the Court and because it tended to bring the administration of justice into
disrepute.
It was submitted by learned President's Counsel for the respondent that the
article was published on the second page of the Divaina
newspaper, which was
largely devoted to advertisements, and that therefore there was little
likelihood of prejudice with regard
to the proceeding before the Court. It was
also suggested that the whole of the article may not have been read, although
the basis
upon which that supposition rested was not explained to us. Published
as it was under a bold headline, it was more than likely that
the article
attracted the attention of a large number of readers. Perhaps the article may
have caused somewhat less harm than if
it had appeared on the front page of the
newspaper. This may be a mitigating circumstance. But even on the second page,
it did
present a real risk of prejudice. Considering that the circulation of the
Divina newspaper is nation-wide, there was a strong probability that it
would be read by at least some of the judges and potential witnesses
in the case
which was commented upon as well as by many other members of the public who were
unconnected with the proceeding before
the Supreme Court but who might be
litigants or witnesses in other cases. The administration of justice in the
particular matter
before the Supreme Court and in other cases as a continuing
process was likely to be obstructed, impeded or prejudiced.
It was submitted on behalf of the respondent that the speech in question was
made by a politician at a political meeting and that
readers would, therefore,
regard it no more than a piece of worthless political propaganda, in the
circumstances, it was submitted,
the publication was not actionable.
164
In Veerasamy v Stewart{16)
Soertsz, J, said that he should "bear in mind that the summary jurisdiction to
punish for Contempt
of Court must not be exercised in regard to matters which
can, if at all, be said to tend to prejudice or interfere with parties
or the
course of justice only in some remote or far-fetched manner. It has been
observed that Courts should not be astute to exercise
this summary power to
punish contempts of a technical kind."
In Jayasinghe v Wijesinghe m Koch J said: "I think that if the publication,
taken in connection with the circumstances of the
case, is such that it tends or
is calculated to prejudice the petitioner in obtaining a fair and impartial
trial, the Court ought
to interfere and punish the offender whether there was
any intention to so prejudice the petitioner or not; but if, in the
circumstances,
the offence is of' such slight and trivial a character as to
amount to a commission of a technical contempt only, and if the petitioner
is
not likely to be prejudiced in his trial, the Court will not interfere."
Koch, J. and Soertsz, J. ought not to be taken, as some English cases seem to
have done, (e.g. cf Chambers v Hudson Dodsworth &
Co. (65); Carl-Zeiss Stiftung
v Ryner & Keeler Ltd (66). Vine Products v Green (49)) to import the concept of
seriousness into
the question 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 they took into
account in deciding what course of action
might be taken against the offender. A
"technical contempt", as the Court said in the Australian case of A.G. (N.S.W.)
v John Fairfax & Sons Ltd. (67) "is contempt". The separate, subsequent question
of what action the Court would take,
in terms of punishment having regard to the
degree 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
(15); per Basnayake, J. in Attorney-General v Vaikunthavasam
(17). See also per
Cotton, L.J. in Hunt v Clarke (52) per Lord Reid in The Sunday Times Case (29)).
Despite the two passing 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 agree, however, that, upon the application of the de minimis principle, there
can be no contempt of which a court would take
165
congnizance if the obstruction or
prejudice is not real but rather, trifling, far fetched, remote or merely
theoretical and in that
sense technical, (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; Buenos Ay res Gas Co. v Wild (75) ; Hunt v Clarke
(52); Metropolitan Music Hall v Lake (76) ; Laurene
v Ambery (77); In re
Rochester Election Petition (78): In re Evening News and Post (79); In re
Pontefract Election Petition ; In
re Martindale ; In re Certain News papers,
Duncan v Sparling(81) ; Ex parte Foster (82); In re E. Wilson Gates (83): Kelly
&
Co. v Pole (84); Fielden v Sweeting (85); R v Payne and Cooper (86)
; Fairclogh v Manchester Ship Canal (86); Fairclough v Manchester
Ship Canal Co.
(87); In re Hooley, ex P. Hooley (88); Shaw v India Rubber Co. Ltd (89); In re
New Phillips v Hess (91); In re Marquis
Townshend (92) R v Daily Mail (93); Ex
p. Stark (94)). The circumstances of the case, including the statement, the
occasion and
place of its utterance and the status of a respondent, are no doubt
considerations relevant to the purpose of evaluating the extent
of obstruction
or degree of prejudice of a statement complained of. There is nothing in the
circumstances of this case, however,
that induces me to consign the statement in
question to the realm of venial trifles. As far as I can ascertain, there is
nothing
in the decided cases supporting the proposition that merely because a
statement comes from a politician, at a political meeting,
the de minimis
principle should become automatically applicable. I am reluctant to accept the
invitation to relegate the
speeches of all politicians made at all political
meetings to such a lowly position.
Having said that, I should like to say this. The Constitution has clearly
defined our roles as legislators and judges as to how
the sovereignty of the
People shall be exercised. The judicial power of the People, in terms of Article
4 (c) can only be exercised
through the courts, tribunals and institutions
created and established or recognized by the Constitution or created and
established
by law, except in regard to matters relating to privileges,
immunities and powers of Parliament and of its members, wherein the
judicial
powers of the People may be exercised directly by Parliament according to law.
Except as permitted by the law, politicians
and other persons such as editors
and reporters, are not, to use the words of Woodrenton, CJ. in the matter of
Armand de Souza(1),
"at liberty to invite themselves into the judgement seat,
and to scatter broadcast imputations such as those with which we
have here to
do.
166
"it is today, as Chief Justice
Abrahams said in 1936 in Abdul Wahab v A.J. Perera et al. (12) as important as
ever to realize
that those people who have the privilege of making laws which
govern us "have also the stern obligation of obeying those laws."
See also the
observations of Poyser, S.P.J. in re Ratnayake (15) quoted below with regard to
the need to deter members of the Legislature
from interfering with the
administration of justice by imposing suitable punishments on those who do
interfere.
Even if it is conceded that the judges and the witnesses were not influenced or
likely to be influenced in the case before the Court,
that does not end the
matter, for there is, in deciding whether the actus reus was committed, the need
to consider the effect of
the statement on the administration of justice as a
continuing process. Thus where there was intemperate criticism of a judge in
his
conduct in a particular case (as for instance in re De Souza (1) or a jury after
a case was concluded (as for instance in Capper
and Capper (64)), or where there
was a scandalizing of a judge by unfair criticism of his conduct in general (as
for instance in
the matter of Armand de Souza (1)) or where there was culpable
criticism of the general body of judges or a group of judges (as
for instance in
re Hulugalle(2); and in re Wickramasinghe (19), there could have been no
prejudice to a particular case. Yet the
acts were held punishable, the object of
the law of contempt in such cases obviously being to ensure public confidence in
the administration
of justice as a continuing process, rather than to ensure
that the course of justice was not impeded or obstructed in a particular
case.
The jurisdiction of the Court exists not only to prevent harm in a particular
proceeding before the Court but, in the public
interest, also to prevent similar
harm arising in other cases, (see Attorney-General v Vaikunthavasan (17) per
Basnayake, J.),
and to preserve the authority and power of the 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 de Souza,(1) Woodrenton, C.J. at p.40
quoted with approval the following words
of Justice Wilmot in R v Almon (supra):
The Constitution has provided very good and proper remedies for correcting and
rectifying
the involuntary mistakes of Judges and for punishing and removing
them for any voluntary perversions of justice. But if their authority
is
trampled upon by pamphleteers and news writers, and the people are to be told
that the power given to the Judges for their protection
is to be prostituted to
their destruction, a Court may retain its power
167
for some little time, but I am
sure it would instantly lose all its authority, and the power of the Court will
not long survive
the authority of it, "(Cf. in the matter of a rule issued on
Capper and Capper (64)
In re Ratnayake (15) the respondent had written to a Judge requesting a
postponement of a case explaining that a party against whom
a warrant had been
issued for failure to appear in Court on summons, was in a delicate state of
health. Poyser, S.P.J (Keuneman
and De Kretser, JJ. agreeing), was of the view
that a contempt of court had been committed. In support of his view, at p. 101.
Poyser, S.P.J. quoted the following remarks of Lord Chancellor Cottenham in Dyce
Sombre (95): "Every private communication
to a Judge, for the purpose of
influencing his decision upon a matter publicly before him, always is, and ought
to be reprobated;
it is a course calculated, if tolerated, to divert the course
of justice, and is considered, and ought more frequently than it is,
to be
treated, as what it really is, a high contempt of court. "Poyser, S.P.J. then
said that although the contempt was not
a "serious one", yet it was properly the
subject of a judicial action particularly in view of the fact that the act in
question had been committed by a person who was not only an Advocate but also a
Member of the Legislative Council. He said that
"Persons in the position of the
respondent must be made to realize that they cannot interfere in the course of
justice, and
that if they do interfere, or attempt to interfere, they will be
punished."
In Attorney-General v Vaikunthavasan(17) Basnayake, J. (as he then was) said:
"When dealing with the question of punishment,
it must be remembered that the
jurisdiction of the court exists not only to prevent the mischief in this
particular case but also
to prevent similar mischief arising in other cases."
Lord Diplock in the Times case (29) said: "The mischief against which the
summary remedy for contempt of court is directed
is not merely that justice will
not be done but it will not be manifestly seen to be done. Contempt of court is
punishable because
it undermines the confidence not only of the parties to the
particular litigation but also of the public as potential suitors in
the due
administration of justice by the established courts of law."
In Almon's Case (24) the proceedings against Almon, who had in 1965
168
published
libels upon the Court of King's Bench failed on technical grounds, but Wilmot, J
in his notes (Wilmot's Notes, 97 ER.94)
said as follows: "The arraignment of the
justice of the Judges, is arranging the King's justice; it is an impeachment of
his
wisdom and goodness in the choice of his Judges and excites in the minds of
the people a general dissatisfaction with all judicial
determination, and
indisposes their minds to obey them; and whenever men's allegiance to the laws
is so fundamentally shaken it
is the most fatal and most dangerous obstruction
of justice, and, in my opinion, calls out for a more rapid and immediate redress
than any other obstruction whatsoever; not for the sake of the Judges, as
private individuals, but because they are the channels
by which the King's
justice is conveyed to the people. To be impartial, and to be universally
thought so, are both absolutely necessary
for the giving justice that free, open
and uninterrupted current, which it has for many ages, found all over this
kingdom, and
which so eminently distinguishes and exalts it above all nations
upon the earth."
Learned President's Counsel for the respondent submitted that the offence of
contempt of this kind requires publication by the contemnor.
I agree.
Publication involves no more than communicating information from one person to
another. In this way, as the material was
handed from reporter to sub-editor to
printer and to the proof readers and to the editor and news vendors, publication
would have
taken place over and over again. In Ragupathy's case (34) where the
material 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 are dealing with passes
through many hands, viz., the
persons who prepare and type it, officials at the
jail, officers of the Supreme Court Registry, and others who have access to it,"
The respondent did publish the statement.
These would be merely internal and private publications of the speech which were
not seen by the judges or potential witnesses or
by persons connected with the
case. There being nothing that could by such limited publication interfere with
or prejudice the
judges or witnesses, there would have been no act of
interference with the particular case; and even if there was some prejudice
with
regard to the administration of justice as a continuing process, it would have
been an act of such insignificance that the
Court would not have taken
cognizance of the act. But these matters, although rolled up
169
on the
no-publication-argument, have nothing at all to do with the question whether the
respondent published the statement.
With regard to the question whether the respondent published the statement in
question, namely, the article in the newspaper, learned
President's Counsel for
the respondent submitted that the respondent did not, cause that publication and
therefore he did not publish
the statement. The respondent, he said, was a mere
reporter who collected the information and passed it on to the editor and that
the decision to publish and the responsibility for the publication was that of
the editor. True enough, in the preceding year,
only 35 of 250 reports submitted
by him had been made use of by the newspaper. Yet, the respondents offending
report, albeit one
of the exceptional pieces he turned out, was actually
published in the newspaper. The reporter in this case did much more than supply
information,: He was the author of the article and in every sense ha was a party
to the publication just as the reporter was in
the Odham's Press case (supra).
The activities of the respondent as a reporter may not have been the case of the
contempt, but
it was at least a concurrent cause. His activity in this case, no
less than that of his editor, completed the causal explanation
of the act in
question, namely the making of the speech by Mr. Senanayake at Aranayake and its
publication in the Divaina newspaper.
The action of the editor in deciding to
publish the report of the respondent did not break the causal explanation.
Whatever may
have been usually done with his reports, the fact remains that in
this instance, and that is all that concerns us, not only was
it used, but his
report, except for the addition of the headline, was almost entirely reproduced
in the newspaper and published
to the public. Would it then be reasonable to say
that the reporter in this case did not publish the statement I do not think so.
The actus reus has, therefore, been established.
The only question that remains is whether the respondent should be excused if,
as he claims, he had no intention of publishing the
statement and that he had no
intention of causing disrepute or disrespect to the Supreme Court or any Court,
and that he did not
intend to obstruct the petitioner's case In other words, the
respondent submits that he ought to be free from liability because
there was no
mens rea.
170
The learned Attorney-General suggested that questions of contempt of 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 that intention is of crucial importance in
deciding upon punishment. The absence of intention to obstruct or
prejudice the
course of justice has consistently been taken into account by the Supreme Court
with regard to the question of punishment.
Thus in Hewamanne v De Silva and
Another (3) Wanasundera, J. at pp. 110 - 111 confirmed the rule but did not
impose any punishment
on account of the fact that the respondents did not have a
"deliberate intention of interfering with the administration of
justice though
the publication had that effect." Abdul Cader, J. at p.195 desisted from
imposing a punishment in the absence
of "malice".
There is, however, a large and debatable penumbra of uncertainty and vagueness
with regard to the element of mens rea in the offence
of contempt. As Borrie and
Lowe (Law of Contempt 1983, 2nd Ed. at p.70) point out, "the application in
general of the doctrine
of mens rea to criminal contempt is not entirely clear."
Arlidge and Eady (The Law of Contempt, 1982), at pp.155 - 156 state
as follows:
"The nature of the mens rea required is still an open question. Before the
passing of the 1981 Act there were
various decisions which indicated a
particular mens rea was required in certain forms of contempt, but nowhere has a
general definition
been attempted".
Glanville Williams (Textbook of Criminal Law 2nd Ed. at p. 929 note 2) states
that although the offence of contempt has been said
to be an exception to the
general rule laid down by Cockburn, C.J. that mens rea is "the foundation of all
criminal justice",
"how far this is true has never been altogether clear . .
.Contempt of court was perhaps a crime of strict liability in certain
respects
at common law. . ."
It seems to me that, in general, in the case of the offence of contempt of
court, it is the addition of mens rea to the actus reus
that completes the
offence. As Wilmot, J. at p.102 held in Almon's Case (supra), Actus non facit
reum nisi mens sit rea is a part
of the offence of contempt. (See also
Metropolitan Music Hall v Lake (76) Marquis Townshend (92) ; per Denning, M.R.
in A. - G.
v Butterworth (96) per Claasen, J. in the South African case of S v
Van Nieker (97).) But see per Donovan, LJ. in Butterworth's
Case
171
(96). per Goddard C.J. in R v Odham's Press Ltd, ex p. A -G (6); ex p. Jones (10) per Lord
Erskine, L.C.; St. James Evening Post
Case m) The Privy Council in Reginald
Perera v The King m in holding the respondent free from liability took into
account the fact
that he had acted in good faith. Again, in Vidyasagara v The
Queen (45) Lord Guest in delivering the decision of the Privy Council
at p.27
said "The questions, 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." It appears,
therefore, that
the Privy Council was not regarding the offence of contempt as
one which imposed an absolute liability. The Privy Council in Vidyasagara's
Case
at p.28 found that the offensive statement was "deliberate and unnecessary in
the circumstances" and affirmed the
decision of the Supreme Court.
A person is not guilty of the offence of contempt unless there was mens rea as
the law may require with respect to each material
element of the offence. With
regard to the element of publication, which as we have seen has been established
in this case, it
is necessary that the publication was intentional. In McLeod v
St. Aubyn (11), where a newspaper printed certain letters containing
abusive and
derogatory comments on the Chief Justice of St. Vincent, but the accused had
merely lent a copy of the newspaper to
the librarian of a library that had not
received its copy, the Privy Council held that the accused had not committed a
contempt,
for, as Lord Morris who delivered the judgment said at p.562: "It
would be extraordinary if every person who innocently handed
over a newspaper or
lent one to a friend with no knowledge of its containing anything objectionable,
could thereby be constructively
but necessarily guilty of a contempt of court
because the said newspaper happened to contain scandalous matter reflecting on
the
court."
The correctness of the decision in McLeod's Case was accepted by Lord Goddard,
C.J. in R v Griffths, ex p. A. - G. (5). "We
should", the Chief Justice said,
"take the same view".
The article in the case before us was, except for the headline, in the exact
words of the respondent and he can hardly claim that
he was not aware of its
contents. Moreover, since his payments depended on publication, he must have
hoped very much that this,
as indeed all his other contributions, would be
published. In the
172
circumstances, the respondent can hardly claim that he did not
intend the publication of the statement in question. I think he intended
the
publication in the sense that it was his conscious object that his report would
be published.
Although it was really the person in charge of the provincial news desk who had
checked the report and authorised the publication
in the matter before us, the
editor had accepted responsibility for the publication and he had been already
punished for contempt
of court. To publish or not, learned Presidents Counsel
for the respondent submitted, is the decision of an editor. It is his
responsibility
to scrutinize a text that had been forwarded by a reporter and to
identify and expunge deleterious and noxious material.
It is a tradition of journalism as well as a rule of law that, because of his
ultimate and overall control, an editor is responsible
for and takes
responsibility for what is published in his paper. (See Re O'Connor, Chesshire v
Strauss (98) R v Evening Standard
Co. Ltd, ex (99) ;R v Odhams Press Ltd. ex p. A
- G (100). See also The Queen v D. Peries (18)). The editor is responsible
whether
he deliberately published the article in complete disregard for the due
administration of justice, as for instance in R v Bolam
ex p. Haigh (101)
whether he had no personal knowledge, as for instance in The Queen v D. Peries et
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 not the writer of the article (as in re Hulugalle
(2).) In the matter of the rule on De Souza (68),
the editor denied the charge
and insisted on proof of the fact that he was the editor. Pereira, J. regarded
this as an aggravating
circumstance.
However, learned President's Counsel for the respondent submitted that reporters
are not in the same position as editors. In support
of his view be cited the
comment of Chief Justice Lord Goddard in R v Griffths ex p. A - G that "The
offence is not
a mere preparation of the article but the publication of it
during the proceedings . . .It has never yet been held that a reporter
who
supplied objectionable matter to his editor or employer, which the latter
published, is himself guilty of contempt."
As learned President's Counsel quite properly pointed out, Lord Goddard must
have overlooked the decision in R v The Evening
173
Standard Ltd (99) where a reporter who telephoned the offensive material to his
editor was found guilty of contempt.
In the same year as the Griffths case, a reporter who wrote the offending
article was found guilty of contempt and fined in the
case of R v Odhams Press
Ltd ex p, A - G (6) Reporters are not necessarily free from liability. And the
case before us is not the
first case in this country when a reporter has been
asked to show cause why he should not be punished for contempt of court. For
example in re U.P. Jayatilake (33) a correspondent of the Ceylon Daily News was
asked to show cause, although in that case he was
not held liable because a
magistrate who had no jurisdiction to do so had called upon the reporter to show
cause why he should
not be dealt with for contempt.
I am of the view that reporters who supply information to a newspaper are
responsible for the publication as the editor. Borrie
& Lowe, op. cit. p.250
state that: "The principal persons who can be said to bear a real responsibility
for a newspaper
or magazine publication and who can, therefore, be regarded as
intending to publish are: the editor, the proprietors, the printers,
the persons
supplying the information to the newspapers such as a reporter or news agency
and, lastly, the persons responsible
for the distribution of the newspaper."
Arlidge and Eady, op. cit. at p.128 point out that although within a newspaper a
reporter
publishes to a sub-editor and so on and not to the public at large, yet
he is a party to the publication in the newspaper and he
is liable on the basis
that he intended the publication. "Obviously", they say, "a reporter or news
editor intends
that matters he supplies shall be published, although others may
have a discretion to exercise it."
I have already held that in this case the respondent did intend the publication
in the sense that he desired it, that publication
was a conscious object of
submitting his report to the editor. Even if I am prepared to hold that the
reporter did not intend to
publish in that sense, he must be held liable on the
basis that he was heedless of the risk that publication was highly probable,
or
having regard to his past experience that some of his contributions were
published, that publication was a reasonable possibility.
Considering the nature
and purpose of his conduct and the circumstances known to him, he was guilty of
a deviation from the standard
of care that would have been exercised by a
reasonable man in his situation and he must,
174
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) said at p. 141 that
in view of his decision with regard to the defence
of privilege it was
unnecessary to consider the contention put forward with regard to mens rea.
However, Ranasinghe, J. added:
"Even so, in view of the fact that there has been
considerable discussion of this matter, I would merely give an indication
of
what seems to be the position, in law, in regard to this matter. Having regard
to the various decisions - from the English,
Indian, Australian and also our own
courts - and also the discussions of the several authors of text books, it seems
to me: that
the mental element required to be established is merely an intention
to publish the impugned, objectionable matter; that an intention
to bring the
judge or the court into hatred, ridicule or contempt and interfere with the due
administration of justice on the part
of the offender is not a required
ingredient of the offence of contempt of court." At p.171 Ranasinghe. J. stated
as follows:
"No allegation of malice has been made against either of the
respondents by the petitioner in his affidavit; and learned Queen's
Counsel did
also, in the course of his submissions, state that no such allegation is being
made. There is no reason why the 1st
respondent's assertion that his was an act
done bona fide and solely for the purpose of supplying information to the public
should
not be accepted."
There are other cases, which seem to support Ranasinghe, J.'s view that
intention, apart from an intention to publish, is not a
necessary ingredient of
the offence of contempt.
In Veerasamy v Stewart et al (16), the editor and publisher of the Times of
Ceylon were charged with contempt in respect of certain
editorials, letters and
reports of a speech appearing in their newspaper referring to proceedings in a
Magistrate's Court which
were likely to prejudice a fair hearing. The case,
Soertsz, J. said at p.482, afforded an illustration of what he believed "has
been the experience of nearly every one of us, that we have slipped into saying
things we did not intend, or that we have said
more or less than what we meant."
His Lordship said that he was satisfied that in publishing these articles "it
was not
the purpose of the respondents
175
to prejudice the petitioner and his co-accused, or to interfere with the 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 Affairs Behar v Murali Manohar (102) "It has been frequently laid down that no 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 the article or articles complained of is to create prejudice, or is to interfere with the due course of justice". His Lordship then proceeds to the question of the meaning of the words complained of and states that what is relevant is not whether the publication in fact interferes but whether it tends to interfere with the due course of the administration of justice. Soertsz, J. then says; "Therefore, in view of my finding that the respondents did not intend to interfere with the course of justice, it is sufficient for me to address myself to the question whether these publications tend to prejudice the petitioner and the other accused, by interfering with their right to a fair and impartial trial." After stating that the prejudice should not be remote or far-fetched, Soertsz, J. at p.483 quotes the observations of Lord Hewart, CJ. in Gaskell and Chambers Ltd. (103) that "The applicant must show that something has been published which is either clearly intended or at least, is calculated to prejudice a trial that is pending" and analyses the dictum in the following terms: "the conditions laid down in it for the exercise of the jurisdiction appear to be (a) a pending trial: (b) a publication intended or calculated to prejudice the trial." The emphasis was that of the learned Judge. Having said that the respondents when they wrote the articles were "well aware of the pending case", his Lordship states that the first condition was therefore satisfied. Soertsz. J. then says: "In regard to the second condition, I have observed already that I am satisfied that the respondents did not intend to prejudice the accused by interfering with their right to a fair trial. The sole question that remains is whether these publications are calculated to prejudice the accused in that way. Commenting on this phrase "calculated to prejudice" in the case of R v Tibbits (55) Lord Alverstone, CJ. said: "The essence of the offence is conduct calculated to produce, so to speak, an atmosphere of prejudice in the midst of which the proceedings must go on." Soertsz, J. then examines the meaning of the words complained of at p.487 and holds that "although the respondents had no intention to cause prejudice, the publications for which they admit responsibility are calculated to produce an atmosphere of prejudice in the midst of which proceedings must go on and in that way they
176
tend to interfere with a fair trial
of the case". He concludes by observing that the respondent entertained the
opinion that
they were entitled to comment in the way they did but finding that
they were in error, they had apologized to Court. In all these
circumstances and
particularly in view of the fact that it was not the purpose of the respondents
to cause prejudice or to interfere
with the course of justice, the rule was
discharged.
"Calculated to prejudice" may mean likely or having a tendency to prejudice. The
phrase may also mean intended to prejudice.
To say that contempt is committed if
the statement is likely or has a tendency 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 the question of actus reus. Whether intention for the
purpose of
mens rea existed is, with great respect, a separate question. As the editor and
publisher of the newspaper, the respondents
did not deny and could not have
denied that they intended publication. What they did deny was the existence of
an ulterior intention
and that fact resulted in 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 as follows:
"In his affidavit the
party noticed has averred that he had no 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. in
Armand
de Souza (supra) for ascertaining the meaning of the words, viz. how would the
majority of those who it reached interpret
the words. In discussing the question
of punishment at p. 299, Keuneman, S.P.J. states that "It is very likely that
the party
noticed did not intend to convey the full meaning which the words
would ordinarily bear," but finding that he persisted in
maintaining that the
words were not "offensive and derogatory to the Judge", his humble expression of
regret for having
made the statement was not a sufficient apology which could be
taken in mitigation and accordingly sentenced him till the rising
of the Court
and also fined him. It is of importance in deciding whether the actus reus has
been committed what imputation is conveyed
by the words complained of. What
imputation is conveyed by any particular words is, as I have said, to be
determined by an objective
test so as to exclude the meaning intended by the man
who published the words. Keuneman, S.P.J. seems to support this view. But
since
the respondent persisted
177
in saying that the appropriate imputation was the
meaning he intended, rather than frankly admitting that the imputation
attributed
by the Court was not what he had intended and endeavouring to show
that his failure to perceive it was not culpable, he was punished.
In Queen v Pieris Sri Skanda Raja. J. said at p.374: "In this case I find it
difficult to accept what the reporter in question
avers in his affidavit. Having
by his negligence put the respondents into trouble he seems to attempt to save
himself and his job.
An affidavit from his brother who is alleged to have acted
as his substitute has not been filed." At p.375 he concludes as
follows:
"Though no intention to prejudice the minds of the jury against the accused can
be imputed to the respondents, this publication
was calculated to or tended to
do so. And that is enough to constitute contempt. Intention is not a necessary
element in a matter
of this kind." It seems clear from both the judgments of Sri
Skanda Rajah, J. and of T.S. Fernando. J. that the respondents
in that case were
guilty of negligence.
On the other hand, there are other decisions which clearly suggest that malice
will make a respondent liable and that good faith
will free him from liability.
In Hewamanne v De Silva (supra), although Ranasinghe, J. had, as we have seen,
stated obiter that
intention, beyond intention to publish was, not a part of the
offence of contempt. His Lordship at p.173, however, with great respect
correctly, includes the element of absence of malice in formulating the defence
of privilege. His Lordship said: "a consideration
of the question, which arises
upon the plea put forward on behalf of the respondents. . .leads me to the view
that the protection
granted by the common law to a fair and accurate report of
proceedings of Parliament without malice and solely for the information
of the
public though it contains defamatory matter also protects a fair and accurate
report of a proceeding of Parliament, such
as "A", published without malice and
solely for the information of the public and the publication of which has not
been
prohibited by Parliament even though such report contains matter which
would have otherwise rendered the publisher liable to be
dealt with under that
branch of the law known as "scandalizing a judge or Court".
In Reginald Perera v The King (8) the Privy Council applied the test in Reg v
Gray(7) that there must be involved "some act
done or
178
writing published
calculated to bring a Court or a judge of the Court into contempt or to lower
his authority "or something
"calculated to obstruct or interfere with the due
course of justice or the lawful process of 1he Courts. Lord Radcliffe at
p.296
then said: "What has been done here is not at all that kind of thing. Mr. Perera
was acting in good faith and in discharge
of what he believed to be his duty as
a member of the Legislature. His information was inaccurate, but he made no
public use of
it contenting himself with entering his comment in the appropriate
instrument, the Visitors Book, and writing to the responsible
Minister. The
words that he used made no direct reference to the Court, or to any judge of the
Court, or indeed to the course of
justice, or to the process of the Courts. What
he thought that he was protesting against was a prison regulation, and it was
not
until some time later that he learnt that, in so far as a petitioner had his
petition dealt with in his absence, it was the procedure
of the Court, not the
rules of the prison authorities, that brought this about. Finally, his criticism
was honest criticism on
a matter of public importance. When these and no other
are the circumstances that attend the action complained of there cannot be
contempt of Court." The respondent it seems was exonerated on two grounds: (1)
the absence of a statement that was in nature
contemptuous and (2) the fact that
he had acted in good faith.
In the matter of Capper and Capper (64), the proprietors and publishers of the
Times of Ceylon were ordered to show cause why they
should not be punished for
contempt of court by holding up to public odium and ridicule the jury who had
tried a certain criminal
trial. The trial was over in this case and so there was
no question of interfering with pending litigation. The contempt, therefore,
was
concerned with future litigation. The respondents said that in criticizing the
conduct of the jury, they did not intend to
scandalize the Court, no contempt
was intended, that the act was bona fide without malice, that the highest
respect was entertained
by them for the Court and that they regretted the act.
Bonser, C.J. (Lawrie and Withers, JJ, agreeing) held at p.320 that "The
proprietor has stated that he had no wish to interfere in any way with the
administration of justice or to insult the jury; that
he did not know that that
was the result of his acts - in other words that he did not know any better; and
the Court accepts the
apology and explanation which has been offered, and the
order will be that no order will be made in the matter."
179
It would seem that the Court did not take cognizance of the alleged contempt
because the actus reus was absent, nor because an intention
to publish was
absent, but because there was no intention of disparaging the members of the
jury or interfering with the administration
of justice as a continuing process.
In Kandoluwe Sumangala v Mapitigama Dharmarakitta et al (25) an application was
made by Mapitigama Buddha Rakkita for a rule nisi
on Tibbotuwe Siddhartha
Sumangala Maha Nayake of the Malwatte Chapter, (the first respondent) who had in
a proclamation issued
while an appeal was pending, characterized the evidence
given by two priests in the Court of law from which an appeal had been
preferred, as being "suppressive of truth and upholding falsehood, and the
alleged editor (the second respondent), and the
printer and publisher (third
respondent of the Sarasavi Sandaresa who had reproduced the statement
Woodrenton, J. (at p.201) said
that he had "no hesitation in holding that this
is a clear case of contempt of Court". According to Woodrenton, J. (pp.200)
in
fin. - 2011), the main defence in the case was that set out in the affidavits of
the first and third respondents, the author
of the proclamation and the printer
and publisher respectively, namely, that they had not intended to commit a
contempt of Court
and that "there were, in any event, circumstances which
constituted a great mitigation of any offence that could be laid to
their
charge." His Lordship was "quite prepared. . . to accept the good faith of the
allegations contained in these affidavits."
In conclusion, Woodrenton.J. at
p.202 said: "In regard to the present case, it appears to me that in view of the
affidavits
of the first and third respondents, and of the apologies in these
affidavits, the ends of justice will be met if the present rule
is discharged,
with costs to be paid by those respondents to the application. As regards the
second respondent, I think that his
affidavit shows that he is in no way
responsible for the publication complained of. His name does not appear on the
pages of the
Sarasavi Sandaresa, and I do not think that the mere fact that his
name does appear in the almanac which Mr. A. St. V. Jayewardene
has 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 the applicant's costs of the present
motion. I should propose, therefore, as regards the second respondent, simply to
discharge
the rule, making no order as to costs."
180
Grenier, A.J. at p.202 agreed "entirely" with what had "fallen" from his
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
in holding" that there was a
contempt of Court, it would seem that although he was satisfied that the actus
reus was established,
there was no mens rea and that, therefore, the respondents
were not liable. However, there was an award of costs against the first
and
third respondents. On the other hand, the rule against the second respondent was
not only discharged, but no order as to costs
was made against him because there
was no evidence that he was in any way "responsible" for the publication
complained
of. Perhaps he was in fact not the editor and therefore he was not in
a situation requiring the nature and degree of care required
of such a person?
This is not expressly stated in the judgment, but it seems to be a reasonable
inference. It would seem that if
he was in fact the editor, the second
respondent might also have been held "responsible" and liable 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 letter should not have been in the
form in which it was written
and since an apology was made, the rule was
discharged with a warning to the respondent.
Learned President's Counsel for the respondent submitted that there was no
deliberate and wilful intention of scandalizing the Court
or of causing
prejudice to the administration of justice. On the basis of the dictum of
Ranasinghe, J. in Hewamanne's Case at p.
173, and the decisions in the cases of
Reginald Perera, Capper, Kandoluwe Sumangala and Ratnayake, it may seem that the
rule in
this case too should be discharged. However, it has been held in other
cases that it is not sufficient for a respondent to establish
that he had no
intention to scandalize or to interfere with the course of justice if it is
established as a fact or inferred from
the circumstances that his conduct was an
antecedent but for which the result in question would not have occurred and that
he foresaw
or ought on account of his position to have foreseen that the result
was at least a reasonable possibility. This, I believe, is
the effect of the
decisions in De Souza, Wickramasinghe, De Mel Laxapathy, Hulugalle, Abdul Wahab,
181
Jayasinghe, Peries and Vaikunthavasan. Obviously, since
negligence suffices, if a respondent acts purposely, knowingly or recklessly,
he
will be liable.
In the matter of the rule on De Souza (68), the Editor of the Ceylon Morning
Leader was before the Court. He had made false and
fabricated statements about a
criminal trial that had been recently concluded. He had alleged that the
presiding Judge was guilty
of being harsh, unreasonable and vexatious. Pereira,
J. at p. 45 said that "Whether all this was the result of a mere itch
for
vituperation of those in high authority in the country, or a desire to advance
the interest of a newspaper by pandering to
the morbid tastes of a clientele
craving for claptrap and sensationalism makes little difference." At p.46, Pereira.J. found
that the respondent had indulged in "a game of reckless and
impudent attack on the Judge". Observing that, although the
respondent had
aggravated his conduct by omitting to admit "fairly and squarely that he was the
editor of the Ceylon Morning
Leader newspaper and insisting on proof of that
fact", he had, nevertheless, albeit tardily, tendered an apology in which he
unreservedly withdrew the insinuations made by him and expressed his regret. He
was found guilty and fined.
The other case against De Souza as well as Wickramasinghe's Case also seem to
rest on the basis of recklessness in the sense of
a conscious disregard of a
substantial and unjustifiable risk of interference with the administration of
justice or, having regard
to the respondents position, a gross deviation from
expected standards of conduct.
In the matter of Armand de Souza, (1) the Editor of the Ceylon Morning Leader,
it had been alleged in an editorial article entitled
Justice at Nuwara Eliya,
that the Judge, Mr. Hodson, presiding over the Nuwara-Eliya and Hatton areas did
not exercise his own
judgment but allowed himself to be influenced by the Police
and that he favoured the European planting community and could not be
relied
upon to do justice when a European planter was a party to a legal proceeding.
In a statement read to Court, de Souza said that upon receipt of complaints from
several proctors and others of "the irregular
methods and impatient temper of
Nuwara-Eliya Judge", he visited the Court "and was satisfied of the truth of the
complaints
after making full
182
inquiries from those present." De Souza said that
he himself observed that "the Judge arrived at about 11.30, tried cases
in
chambers till about 1.50, and then came on the Bench for about 10 minutes, and
got through a considerable amount of work in
excessive haste, postponing some
cases because his train was coming, and leaving about fifteen others entirely
untouched. I came
back, and in due time wrote two editorials . . .
I did not know the Judge, and had never, to my recollection, written about him.
I have no feeling whatever against him. I acted
throughout from a sense of my
duty as a public journalist, anxious for the safer and more careful
administration of justice both
at Hatton and at Nuwara Eliya. I intended no
contempt of his Court, and nothing was further from my thoughts and intentions
than
to bring the administration of justice into contempt; my object and anxiety
throughout being the exact contrary, namely, that the
people of Hatton and
Nuwara Eliya should have justice administered to them in a manner calculated to
inspire better confidence
in the administration of justice. I gathered that the
people were dissatisfied and felt aggrieved."
He admitted that although Hodson had "honestly and conscientiously exercised his
own judgment", yet he had allowed such
judgment to be "influenced by statements
and statements improperly made by the police". He also admitted that there was
no room for any suspicion of unfairness on the part of the Judge, that this man
Hodson had done his duty "conscientiously"
and that he was "a straight, honest,
man", that he was, with regard to the allegation of favouring Europeans,
"mistaken
in the methods adopted."
De Souza was convicted and sentenced to undergo one month's simple imprisonment.
In re Dr. S.A. Wickramasinghe(19) the respondent, a well-known politician, had
at a public meeting scandalized the judiciary. He
admitted he had no cause to
show why he should not be punished but explained that he had intended to
criticize the police and not
the Courts and expressed his regret for
"unintentionally" breaking the law by criticizing the Courts. Gunasekera, J.
(Gratiaen and Pulle, JJ. agreeing) said at pp. 512-513 that: "It is idle for the
respondent to pretend 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
183
'general criticism1 of the judges amounted to a contempt of court and in that
sense it was 'unintentionally' that he broke
the law". The Court did not regard
his expression of regret as a sufficient apology and imposed a sentence of
imprisonment
in addition to a fine.
In Attorney-General v M. De Mel Laxapathy, (13), the respondent claimed that the
offensive notice which he had caused to be printed
and published was in the
Sinhala language with which he was not well acquainted, that he had no
ill-feeling against the accused
persons, and that it did not occur to him that
they were likely to be thought as guilty by reason of what was stated. Abrahams,
C.J. (Maartensz and Moseley, JJ. agreeing) was prepared to believe that the
respondent "did act without due care and attention"
in the preparation of the
offensive notice regarding a pending case. The Court was prepared to believe
that he had "no intention
of prejudicing the fair trial of this case", but
nevertheless fined him.
In the matter of a rule on Hulugalle(2) the respondent who was the editor of the
newspaper in which the article in question appeared
stated in his affidavit that
he was not the writer. He denied that the passages complained of contained the
meanings attributed
to them in the Rule and protested his respect for the Judges
and said that if he had thought that the passages bore the meanings
attributed
to them, whether the same amounted to contempt or not, he would not have
permitted publication. The respondent had not
apologized. With regard to the
defence that he was not the writer, Abrahams, C.J. at p.308 said that the editor
had passed the
matter for publication and that his responsibility was "therefore
hardly less than if he had written it." He was imprisoned
until the rising of
the Court and fined.
In Abdul Wahab v A.J. Perera et al (12), where pending a criminal charge against
a person, the respondents distributed among the
public a leaflet suggesting that
the accused was guilty of the offence with which he was charged, Abrahams, C.J.
(Koch and Moseley,
JJ. agreeing) said: "As to whether the respondents actually
intended to prejudice a fair trial or not, we are of the opinion
that they never
stopped to think about it. As is unfortunately not seldom the ways of men in
such matters, they assumed the guilt
of the accused and could not contemplate
any other conclusion to the trial than his conclusion. But that they acted with
deliberate
malice against the accused is a matter which we do not hold to be
proved." However, taking into account the fact that this
was the first case when
a
184
legislator had committed an act of contempt, that the respondents had not
disputed the facts and not raised any technical points
but had rather "submitted
themselves fully and humbly to the judgment of the Court", the Court fined the
respondents.
In Jayasinghe v Wijesinghe et al. (14), the respondents were signatories to
published leaflets summoning a meeting suggesting that
the 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 notice convening the meeting, and it may be
that the word "murder" was not used intentionally, but the use of that
word in
the notice for which the respondents were responsible was bound to create the
impression that the person charged or who
would be charged was guilty . . .and
thus prejudice that person in obtaining a fair trial". The respondents were
found to
be guilty of "interfering with the due administration of justice" and
fined.
In The Queen v Peries et al(18) the respondents admitted they had no cause to
show why they should not be dealt with for publishing
in their newspaper
comments on a pending case which were likely to interfere with the
administration of justice. They expressed
their deep regret and tendered
apologies to the Court. The first respondent, the editor, accepted full
responsibility for the offending
publication, although he had not seen the
report prior to publication. The report had been passed for publication by a
sub-editor
in the belief that the correspondent's report was accurate. With
regard to the submission of the sub-editor that he was unaware
that the question
of admissibility of a confession by the accused had been argued in the absence
of the jury, T.S. Fernando. J.
at p.373 remarked that the sub-editor had "not
observed the ordinary caution that should have presented itself to the mind
of
anyone holding a position like his when he read the reference to preliminary
arguments about admissibility. The editor had submitted
an affidavit from the
correspondent that he had not personally attended Court and that the report had
been prepared by his younger
brother. He said that he had been reporting
proceedings in court for about two years and that if he had been aware that
argument
took place in the absence of the jury, he would not have forwarded the
report in the form in which it was sent. T.S. Fernando.J.
at p. 374 said that in
that case too there did not appear to have been "an exercise of the ordinary
caution" 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
185
that the
respondents did not intend to interfere with the administration of justice, it
is undeniable that the publication actually
made was calculated to prejudice the
minds of the public and, more to the point, the minds of the jurors trying the
case, Indeed
that much is admitted in terms in the affidavits presented by or on
behalf of the respondents. In these circumstances, taking into
account the
prompt expressions of regret and the apologies tendered, we deemed it sufficient
to sentence each of the respondents
to pay a fine of Rs 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 was the editor,
printer and publisher of a newspaper had published
an article which was likely
to prejudice the fair trial of a case that was then pending before a
Magistrate's Court. He admitted
the offence, but tendered his apologies to Court
and explained that he had recently started the paper without any previous
experience
of journalism. Nagalingam. J. made the rule absolute but imposed "no
further punishment." Basnayake, J. (Gunasekera, J.
agreeing), however, taking
into account the mitigating circumstances to not imprison the respondent,
imposed a fine. It seems that
as the editor, printer and publisher, the
respondent was guilty of recklessness or negligence as to the result of the
statement.
I hold that in this case the respondent had no intention to prejudice the case
before the court or to obstruct or impede the administration
of justice. I am
also of the view that he did not know that the statement he prepared might bring
about the consequences which
in fact were brought about by his statement.
However, I hold that as a newspaper reporter with certain responsibilities, the
respondent
ought, but failed, to have had the foresight to see that his report
was likely to cause prejudice to the case before the Court and
to the
administration of justice as a continuing process. The respondent is, therefore,
liable.
For the reasons stated in my judgment, the Rule is made absolute. There remains
the question of sanctions. The punishment for contempt
of Court was in ancient
times very severe, and often cruel and barbarous. The old English cases show the
ferocity with which persons
were punished for contempts. Richard de Carilon was
adjudged to have his right hand cut off and his castles forfeited to
186
the King.
But the King gave his lands to one of his own varlets and excused the defendant
from losing his hand. James Williamson
was less fortunate. He was a criminal
convicted at the sessions held at Chester in October 1684. He threw a stone at
the Judges
on the Bench and had his hand cut off and fixed over the entrance
gate of Chester Castle where it remained for some years. The punishment
of the
offence has now become comparatively merciful, the severest punishment being
limited to fine or imprisonment although in
some cases both are inflicted. It is
also possible to bind over the offender to be of good behaviour or to accept an
apology and
order the respondent to pay costs. Sometimes the rule has been made
absolute with no further order. Having regard to the fact that
Contempt of Court
is an offence purely sui generis and one that is vaguely defined; and taking
account of the fact that cognizance
of the offence involves in this case an
exceptional interference with the fundamental right of freedom of speech and
expression,
including publication, guaranteed by Article 14 (1) (a) of the
Constitution; and considering the fact that the respondent did not
have the
consequences of his act as a conscious object of his conduct; and considering
that, although as a reporter he had duties
and responsibilities yet his role in
the publication was a comparatively subordinate one, no punishment is imposed on
the respondent.
Rule made absolute.
No punishment imposed.
] [Hide Context]
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