It is a principle accordingly about the application of which tothis Island there can be no question. I think the reason to bededuced from those decisions for extending the immunity to thosepersons is that without it they would not be able to execute theduties required of them, as those duties so very frequently requirethat they should speak or write freely and be fearless of consequencesso far as actions being brought against them are concerned, that theimmunity was absolutely essential in their cases, that it is sinequo re$ ipsa esse non potest. A little consideration of the dutiesrequired of Judges, counsel, witnesses and parties, and of officialreceivers under the Companies (Winding up) Act will show howfrequently and even unexpectedly occasions will arise calling forfreedom of speech and how' the “ administration of justice would beparalyzed unless they were protected from actions, and in the caseof official reports and state documents, as Kay L.J. remarked.“ how could the business of government be carried on ” without-that immunity. A consideration of the duties to be performedby members of the Council does not convince me that their dutiestoo cannot be performed unless the same protection W'ere extended
* Broom's A Selection of Legal Marims, 8th ed., p. 1.
3 Grotius de Jure Betti et Pac., bk. III., eh. 20, s. 7, ss. 1.
( 467 )
to the members of the Council. I grant that they must have 1928.freedom of speech and need no authority to concede that. But sohn&idbbis it necessary for the due exercise of that right that the membersshould be immune from all actions at law? I think not. Privilege Abdul Coderin respect of defamation is of two kinds. There is the absoluteprivilege which is conceded, as we have already; seen in the decisions, l. d.to Judges, counsel, witnesses and parties in a proceeding in a Court Parsonsin law, and to statements made by public officers in state documentsand official documents of a confidential nature. On public groundsno action lies against them however maliciously they may haveacted. Then there is the qualified privilege or ‘Sub modo to whichevery subject of His Majesty the King is entitled provided theoccasion on which the defamatory matter is written or spoken isprivileged and there is an absence of express malice, or as LordEsher M.R. said: —
"He is using the privileged occasion for the proper purpose andis not abusing it."
In this case the action will lie if there be evidence of expressmalice. The first kind of privilege seems rather to attach to theperson or character of the person writing or speaking the defamatorymatter, the second to the occasion when the defamatory matter iswritten or spoken. The case from which I have taken the wordsquoted above, although not precisely in point, yet might usefully bereferred to here. It is Royal Aquarium and Summer and Winter .
Garden Society, Ltd., v. Parkinson.l In it absolute privilege waspleaded for defamatory statements made by a Councillor at ameeting of the London County Council for granting music anddancing licences, on the ground that the meeting was a Court withinthe meaning of the rule by which such statements before a Courtare accorded that privilege. But it was held that the Councillorwas only entitled to the ordinary privilege which applies to a com-munication made without express malice on a privileged occasion.
Fry L.J., discussing the argument that the existence of the immunityis based on considerations of public policy and that as a matter ofpublic policy wherever a body has to decide questions and in sodoing has to act, judicially, it must be held that there is a judicialproceeding to which the immunity ought to attach, said: —
" Consider to what lengths the doctrine would extend, if thisimmunity were applied to every body which is bound todecide judicially in the sense of deciding fairly andimpartially. It would apply to assessment committees,boards of guardians, to the Inns of Court when consideringthe conduct of one of their members, to the General MedicalCouncil when considering. questions affecting the position'(1892) 1 Q. B. 431.
( 468 )
Abdul Cad&rt*. JET. P.Kaufmannand L. D.Parson#
of a medical man, and to all arbitrators. Is it necessary,on grounds of public policy, that the doctrine of immunityshould be carried as far as this? I say not. I say thatthere is ample protection afforded in such cases by theordinary law of privilege. I find no necessity or proprietyin carrying the doctrine so far as this argument requires.It is to be borne in mind that there i$ a great differencebetween the constitution of the kind to which I havereferred and most Courts. Courts are. for the mostpart, controlled and presided over by some person selectedas specially qualified for the purpose; and they havegenerally a fixed and dignified course of procedure, whichtends to minimize the risks that might flow .from thisabsolute immunity.’*
And Lopes L.J., speaking of the absolute privilege, said: —
" It has been conceded on the grounds of public policy to insurefreedom of speech where it is essential that freedom ofspeech should exist, and with the knowledge that Courtsof justice are presided over by those who by their highcharacter are not likely to abuse the privilege, and whohave the power and ought to have the will to check anyabuse of it by those who appear before them. It is,however, a privilege which ought not to be extended.”
Considering liow very rarely an occasion will arise when it wouldbe necessary in the proper exercise of the freedom of speech for aCouncillor in his place to make any defamatory statement, I amnot convinced that either necessity or propriety has been shownto exist for carrying the doctrine of immunity to the extent whichthe argument requires and that the protection afforded in ordinarycases is not sufficient.
I now come to the other group of cases which consists of decisionsnot only of paramount authority and importance but which have amore direct bearing upon the question under consideration. Foralthough the precise question raised by this application has not beendecided in any one of them, yet principles are there stated which gofar to afford the means of determining that question. They aredecisions of the House of Lords and the Judicial Committee of thePrivy Council wherein the claim to some power or privilege by aSupreme Legislative Assembly or Council of a Colony or Settlementof the Empire has been adjudicated upon by the application of thelegal maxim: Quando lex aliquid concedit concedere viditur et illudsine quo res ipsa esse non potest. If this maxim is applicable in thedecision of the question under consideration and if the immunityclaimed is something incident ta. the freedom of speech granted bythe powers conferred on the Council the claim must be upheld.
( 469 )
If it be asked how that maxim is applicable, I would say that there 1928.are two answers which can be given to that question. One is this, sohnhtobbIt is not a rule peculiar to the English law. 'It is a maxim which J.might be regarded as an axiom. It is derived from common sense (jaderand natural equity. It is of such general application that it may be t?. E P,considered as exhibiting the very foundation on which some part ofthe Legal Science exists. It is a rule which results from a simple Parsonsprocess of reasoning. And as th6 foundation of the Boman-Dutchlaw consists of equitable principles and as there is nothing in therule repugnant to the principles recognized by that law, but on thecontrary, as it formulates a natural and equitable'principle, there isno reason why the rule should not be adopted in a case such as this,in the absence of any express provision in the Boman-Dutch lawwhich is our Common law. That is an answer which might be givenif in fact the Boman-Dutch lawr does not contain this or a similarrule. That it does or does not contain such a rule I am unable to sayas I have not searched the books in order to ascertain and to expressa definite opinion on the point.
The other answer is this, and I would rather prefer to rest upon itmy argument that the maxim is applicable to the question I amengaged in deciding. The Council has been created by His Majesty’sOrder in Council. It is the Common law of England which sanctionsthe exercise of the prerogative by which • the Council has beencreated, therefore the rule in question, being a rule of the Commonlaw, applies in the construction of the effect of the powers granted.
The full import of that rule has been carefully inquired into andelaborately set forth by the Chief Justice of the Supreme Court ofVan Dieman’s Land in his judgment in Fenton v. Hampton 1 in thefollowing terms: —
V Whenever anything is authorized, and especially if, as matterof duty, required to be done by law, and it is found-impossible to do that thing unless something else notauthorized in express terms be also done, then that some-thing else will be supplied by necessary intendment-. Butif, when the maxim comes to be applied adversely to theliberties or interests of others, it be found that no such im-possibility exists—that the power may be legally exercisedwithout the doing that something else, or, even going astep farther, that it is only in some particular instances,as opposed to its general operation, that the law failsin its intention unless the enforcing power be supplied—then in any such case the soundest rules of constructionpoint to the exclusion of the maxim, and regard the absenceof the power which it would supply as a casus omissus. ”
111 Moore P. C. 360.
( 470 )
Abdul Cadetv. H. J>.KaufmannParson*
I cannot do better than adopt that exposition of the rule if forno other reason than that the cases cited in its elucidation do as amatter of fact range themselves under the principle of positive dutyor general inevitable necessity, non-compliance with which woulddeprive the law, whatever it be, of all operation. I shall say no morenow about this case but. will later refer to it again. Before proceed-ing farther it would be convenient to dispose of a subordinateargument here.
It was contended that the Council was the supreme legislativebody in this Island, and in support of this the case of Powell v.Apollo Candle CompanyLimited 1 to be found in this group wasrelied on. One of the questions in that case for decision waswhether the New South Wales Legislature created by virtue ofpowers given under an Imperial Act2 was an agent or delegate of theImperial Parliament. In their judgment Their Lordships mentionedthe cases of Regina v. Burak 3 and Hodge v. The[ Queen ** decided bytheir own Board, and cited from the former the following passagefrom the judgment of the Lord Chancellor as laying down thegeneral law: —

The Indian Legislature has powers expressly limited by theAct of the Imperial Parliament which created '* it, and it> can of course do nothing beyond the limits which circum-scribe those powers. But when acting within, those limitsit is not in any sense an agent or delegate of the ImperialLegislature, but has, and was intended to have, plenarypowers of legislation as large, and of the same nature,as those of Parliament itself.
They said: —
“ These two cases have put an end to a doctrine which appearsat one time to have had some currency, that a ColonialLegislature is a delegate of the Imperial Legislature. Itis a Legislature restricted in the area of its powers, butwithin that area unrestricted, and not acting as an agentor a delegate/*
It was argued that the Ceylon Legislative Council came withinthe Colonial Legislatures contemplated in that judgment; thatit was a “ Colony M and a “ Representative Legislature M within themeaning assigned to those terms in the Colonial Laws ValidityAct, 1865,5 and within the limits placed by the Order in Council,that it has the power under section 5 of that Act " to make lawsrespecting even its own constitution and powers M and that withinthose limits and within the Island it has supreme legislative power. ,
(2888) Law Rep. 10 A. C. 282.3 3 App. Cos. 889.
18 & 19 Vic. c. 54.* 9 App. Cos. 117.
28 dt 29 Vic. c. 63.
( 471 )
I will accept the contention that theCeylon Legislative Council1M8.
has supreme legislative power. It wasthen argued that in con-
sequence of that supreme position the immunity claimed should be J.deemed to be an incident attaching to the powers of legislation Coderconferred on it, although the same incident would appear not to v. tt P.attach to the powers of legislation granted to Municipal and UrbanCouncils, to Local Boards, and Boardsof Health, because theirParaone
powers are of a subordinate character.I cannot assent to this
argument. I think there is no reasonfor this distinction. The
question of the existence of the immunity does not hinge upon thehigher dignity and importance which attach to particular legislativebodies or to the exalted character of the functions to be performed,but upon essential necessity, as the decisions already cited showand as it will appear from the decisions to be presently mentioned.
If necessity does exist for the extension of the immunity to theLegislative Council the same necessity does also exist as regards theother legislative bodies.
Of the cases which I shall now refer to, the oldest is Kielley v.
Carson (supra) decided in 1843 by a Bench consisting of the LordChanceller, two noble members of the Judicial Committee who hadformerly held the Great Seal, the three chiefs of the Common LawCourts in Westminster Hall, two out of the four members of theCourt who were present at the decision of the case Beaumortt v.
Barrett,l the Vice-Chancellor, and Dr. Luskington.
The importance of this case cannot be over-rated, seeing that it wastwice argued and was decided by such an array of judicial learningand eminence.
It* was an appeal from the Supreme Court of the Island of New-foundland. The appellant was arrested and brought before thebar of the House of Assembly upon a warrant- issued by the Speakerin consequence of a complainant made by a. member of the Assemblythat the appellant had reproached him in gross and threateninglanguage out of the doors of the House for the animadversionshe had made in his place in the House on the management of thehospital of which the appellant was manager. When brought tothe bar and the charge was read to him he again used violentlanguage towards the same member in the presence of the Speaker.
He was thereupon required to apologise. He refused and wascommitted to jail, from which he was discharged by an order of theSupreme Court when he was brought up upon a Writ of HabeasCorpus.
The House of Assembly was constituted by a Commission issuedby His Majesty the King. It gave the Governor, with the adviceand consent of the Legislative Assembly, full power “ to make,constitute, and ordain laws for the public peace, welfare, and good'Hkt'lA11 Moore P. C. C. 59.
( 472 )
1028. government of the Island.” Accompanying the Commission wasSommnBB a despatch from a Secretary of State for the Colonies containing
J.instructions to the Governor regarding the mode of conducting theAbM Coder business of the Assembly and the forms of procedure which wereB. P. to be assimilated to those of the British House of Commons. Imention these details to show that the House of Assembly, in regardParsons to its powers and procedure, was in the same position as the CeylonLegislative Council.
The judgment examined Beaumont v. Barrett (supra), which wasa case from Jamaica, in which it was decided that an Assemblypossessed of supreme legislative authority had the power of punish-ing contempts; that the power was inherent in such an Assemblyand incident to its legislative functions. According to the judgmentin that case every Colonial Assembly or Council possessed the sameauthority to punish for contempts which the House of Commonshas exercised in the United Kingdom for a long series of years.Their Lordships would not follow this case. The judgment ofBaron Parke which states the reasons for the decision containscertain dicta which I would quote here. He said: —
"The whole question then is reduced to this—whether by law,the power of committing for a contempt, not in thepresence of the Assembly, is incident to every localLegislature.”1
“ If that power was incident as an essential attribute.”3" Their Lordships see no reason to think, that in the principle ofthe Common law, any other powers are given them, thansuch as are necessary to the existence of such a body, andthe proper exercise of the functions which it is intendedto execute. These powers are granted by the very act ofits establishment, an act which on both sides, it is admitted,it was competent for the Crown to perform. This is theprinciple which governs all legal incidents. Quando lexaliquid concedit, concedere viditur et illudf sine quo resipsa esse non potest. In conformity to this principle wefeel no doubt that such an Assembly has the right ofprotecting itself from all impediments to the due courseof its proceeding. To the full extent of every measurewhich it may be really necessary to adopt, to secure thefree exercise of their legislative functions, they are justifiedin acting by the principle of the Common law. Butthe power of punishing anyone for past misconduct as acontempt of its authority, and adjudicating upon the factof such contempt, and the measure of punishment as ajudicial body, irresponsible to the party accused, whatever
Atp. 233.
9 At p. 234.
( 473 )
the real facts may be, is of a very different character, and 1D28.by no means essentially necessary for the exercise of its Sohnbxdbbfunctions as a local Legislature, whether representativeor not. All these functions may be well performed Abdul Coderwithout this extraordinary power, and with the aid of theordinary tribunals to investigate and punish contemptuous and L, D.insults and interruptions.**1Parsons
The words " reasonably necessary for the proper exercise of itsfunctions,** &c., in the headnote of this case is somewhat misleading.The word “ reasonably ** is not to be found anywhere in the judg-ment in the same conjunction. On the contrary, from the passageswhich I have cited, which are the only ones having a direct bearingon this point, and from the general reasoning in the judgment, it isquite clear that the necessity must be inevitable and not merelyreasonable. It must be a res sine qua esse non potest.
Next in point of time comes the case of Fenton v. Hampton (supra)already mentioned. It was an appeal from the Supreme Court ofVan Dieman*s Land in 1858. The question to be decided wassimilar to that decided in Kielley v. Carson (supra), which wasfollowed, viz., whether the Legislative Council had the power topunish for contempt of its authority. The Legislative Council ofVan Dieman’s Land was established by an Act of Parliament. Itslegislative powers were identically the same as those of the CeylonLegislative Council. It was held that the power to punish claimeddid not belong to the Legislative Council as inherent to the supremelegislative authority it possessed and that the lex et consuetudoParliam enti apply exclusively to the Lords and Commons of theUnited Kingdom and do not apply to the supreme Legislature of acolony by the introduction of the Common law there.
I would next mention Doyle v. Falconer 2 as the same questionwas decided in that case too. It was an appeal from the Court ofCommon Pleas of Dominica. The two cases just mentioned werefollowed and it was held that-1-
*' The Legislative Assembly of Dominica does not possess thepower of punishing a contempt, though committed in itspresence and by one of its members ; such authority doesnot belong to a Colonial House of Assembly by analogyto the lex et consuetudo Parliamenti, which is inherent inthe two Houses of Parliament in the United Kingdom, orto a Court of Justice, which is a Court of Becord :a Colonial House of Assembly having no judicialfunctions."
M p. 234-3.
8 (1866) 1 L. JR. (P, C.) 328.
( 474 )
Abdul Coderv. B. P.Kaufmannand L. D.Parson*
There is one passage in the judgment which was delivered bySir James Colvile which might be usefully cited here1: —
“ The learned Counsel for the appellants invoked the principlesof the Common law, and as it must be- conceded that theCommon law sanctions the exercise of the prerogative bywhich the Assembly has been created, the principle of theCommon law, which is embodied in the maxim Quctndo lexaliquid cone edit, concedere videtur et illud, sine quo res ipsaesse non potest applies to the body so created. Thequestion, therefore, is reduced to this : Is the power topunish and commit for contempts committed in itspresence one necessary to the existence of such a body asthe Assembly of Dominica, and the proper exercise of thefunctions which it is intended to execute ? It is necessaryto distinguish between a power to punish for a contempt,which is a judicial power, and a power to remove anyobstruction offered to the deliberations or proper actionof a legislative body during its sitting, which last power isnecessary for self-preservation.. If a member of a ColonialHouse of Assembly is guilty of disorderly conduct in theHouse whilst sitting he may be removed, or excludedfor a time, or even expelled ; but there is a great differencebetween such powers and the judicial power of inflicting apenal sentence for the offence. The right to remove forself-security is one thing, the right to inflict punishmentis another. The former is, in Their Lordships’ judgment,all that is warranted by the legal maxim that has beencited, but the latter is not its legitimate consequence. Tothe question, therefore, on which this case depends, TheirLordships must answer in the negative. If the goodsense and conduct of the members of Colonial Legislaturesprove, as in the present case, insufficient to secure orderand decency of debate, the law would sanction the use ofthat degree of force which might be necessary to removethe person offending from the place of meeting, and tokeep him excluded. The same rule would apply a fortiorito obstructions caused by any person not a member. Andwhenever the violation of order amounts to a breach ofthe peace, or other legal offence, recourse may be had tothe ordinary tribunals.
“ It may be said that the dignity of an Assembly exercising supremelegislative authority in a Colony, however small, and theimportance of its functions, require more efficient- protec-tion than that which has just been indicated; that it is1 (1866) 1 L. R. (P. C.) 328 at p. 340-1.
( 475 )
unseemly or inconvenient to subject the proceedings ofsuch a body to examination by the local Tribunals ; andthat it is but reasonable to concede to it a power whichbelongs to every inferior Court of Becord. On the otherhand, it may be urged, with at least equal force, that thepower contended for is of a high and peculiar character ;that it is in derogation of the liberty of the subject, andcarries with it the anomaly of making those who exerciseit judges in their own cause and judges from whom thereis no appeal ; and that if it may be safely intrusted tomagistrates who would all be personally responsible forany abuse of it to some higher authority, it might be verydangerous in the hands of a body which, from its veryconstitution, is practically irresponsible.
“ Their Lordships, however, are not at liberty to deal withconsiderations of this kind. There may or may not begood reasons for giving by express grant to such anAssembly as this, privileges beyond those which arelegally and essentially incident to it. In the presentinstance, this possibly might have been done by theinstrument creating the Assembly ; since Dominica wasa conquered or ceded Colony, and the introduction of thelaw of England seems to have been contemporaneouswith the creation of the Assembly. It may also bepossible to enlarge the existing privileges of the Assemblyby an Act of the Local Legislature passed with the consentof the Crown. But Their Lordships, sitting as a Court ofJustice, have to consider, not what privileges the House ofAssembly of Dominica ought to have, but what by law. it has. In order to establish that the particular powerclaimed is one of those privileges, the appellants must showthat it is essential to the existence of the Assembly, anincident sine quo res ipsa esse non potest. Their Lordshipsare of opinion that it is not such an incident."
Here again the principle recognized would appear to be that thepower claimed must be essential to the discharge of the functionsrequired of the legislative body.
Then comes the case of Barton v. Taylor,1 which was an appealfrom the Supreme Court of New South Wales. It was held that thepowers incident to or inherent in a Colonial Legislative Assembly didnot extend to the unconditional suspension of a member during thepleasure of the House. The Earl of Selbourne, who delivered the
Abdul Codert. H. P,
and L, D.Parsons
1 (1886) 11 A. C. 197.
( 476 )
AbduI Coder
V. 0. P.Kattfmannan&L. D.Portions
judgment, speaking o£ Kielley v. Carson (supra) and Doyle v. Falconer{supra) said :—
'* It results from these authorities that no powers are incidentto a Colonial Legislative Assembly except such as arenecessary to the existence of such a body and the proper
exercise of the functions it is intended to execute.”
There remain in this group two cases which I should mention.They are Dill v. Murphy 1 and Fielding et al. v. Thomas.2 Theyare not concerned as the cases just considered were with questions, of the grant of powers by implication, but they are useful asillustrations of the fact that where it was intended to grant anyright, privilege, or immunity, it has been granted in express terms,and also as illustrating the manner and language in which thegrant has been made.
The one was an appeal from Dominica and the other from NovaScotia. In both the question was whether it was within the powerof the provincial legislature to make certain laws defining the rights,privileges, and immunities to be held and enjoyed by the Assemblyand its members. In both cases, purporting to act under powers con-ferred, the Legislatures had enacted that the Council or Assembly andits members “ should hold, enjoy, and exercise such and thelike privileges, immunities, and powers as are held,, enjoyed, andexercised by the Commons House of Parliament of Great Britain.”
In Fielding et al. v. Thomas (supra) the act proceeded further toenact that no member shall be liable to any civil action or prosecutionby reason of any matter or thing said by him before the House, andthat the House shall be a Court of Record with all the rights andprivileges of such a Court.
On the authority of Fielding et al. v. Thomas (supra) it might havebeen contended that the Colonial Laws Validity Act (supra) em-powered the Ceylon Legislative Council to make similar laws as thosecontemplated in that case to confer rights, privileges, and immunitieson the Council and 'its members. I express no opinion whetherthat would be a sound argument or not. If the Council has ibatpower it has in fact made no such laws.
This application must fail if the privilege claimed is not anincident to that freedom of speech which is necessary for the exerciseof the functions entrusted to the Legislative Council. Absoluteprivilege from all actions does not appear to me to be necessaryeither essentially or even reasonably.
As far as I am aware this is the first instance of proceedings beingtaken in a Court of law against a member for anything done or saidwithin the Council although for well-nigh upon a century the work
1 (7$64) 1 (New Series) Moore P. C. C. 487.* (7896) A. C. 601.
( 477 )
of legislation has been earned on here by a Council, which at all 1928.timeB enjoyed the same freedom of speech. Laws are not made SnpwimtT.nto meet such rare cases. >xJ.
Ad ea quae frequeniius accidunt Jura adaptantur is a maxim of Abdul Coder
the law generally recognized. And where the law does not granta power or privilege in express terms how much greater is thereason why it should not be construed as granting it by intendmentespecially where the privilege is in derogation of the liberty orinterests of other subjects.
When we find express provision had been made by ImperialLegislation for the grant of powers, privileges, and immunities in1854 and 1867 to Colonies in Australia and to Nova Scotia, when wesee questions concerning the grant of such privileges have come upbefore the highest Court of the Empire from 1848 to 1895, it doesnot seem possible to take the view that in drafting the Order inCouncil by which the Ceylon Legislative Council was constituted,the grant of privileges and immunities had been overlooked. Themore reasonable view to take is that in erecting such statutorybodies as the Ceylon Legislative Council it has been assumed thatthe freedom of speech necessary to carry out their duties could beexercised under the protection afforded by other means than by theimplication of a privilege infringing upon the personal rights of thesubjects.
I hold that the absolute privilege claimed has not been grantedexpressly or by. implication. I dismiss the application, and orderthe applicant to pay the costs of the 2nd respondent.
Several other questions were raised and discussed, such as whetherthe English law doctrine of absolute privilege was known to orrecognized in the Boman-Dutch law or in this Island, whether theCeylon Penal Code was not exhaustive of all defences pleadable to acharge of defamation under the Code, and whether this application*for a writ of prohibition could be maintained in the circumstancesin which the application has been made. It is unnecessary to formany opinion on these questions to decide the main question whichI have now decided.
In conclusion, I would express my regret for the very unusualdelay which has taken place in delivering this judgment. Thequestion raised was new to me. The authorities cited were spreadover a hundred books. The vacation began within a few days ofthe conclusion of the argument, and there was considerable difficultyin getting and in carrying about the books with me on my vacationand during the time I have been on circuit,, which began inthe middle of the -vacation and has continued up to the present time,except for a break of a few days in Colombo.
v, H, ?.Kauftnannand L. D.Parson*
Application dismissed.