Law ReporO
[NSm SHk.fi
which is done " temperately and fairly" amd whichrefrains from imputing improper motives.
The fact that the respondent merely reproduceda resolution in parliament has no application tothe issue under consideration as I am concerned, atthis point, only with the question whether thewords in the news item per “se bring the court intodisrepute and scandalises the court and 1 have nohesitation in holding that they do .
I now come to the question whether therespondents can avoid liability on the ground ofqualified privilege. Notwithstanding the manycases cited to us, there is none directly in point.There are, however, a few cases that provideassistance to decide the issue before us, which Tshall consider at seme length.
In De Buse and Others v. McCarthy and Another
, the court held that the statute on which thedefendant'relied did not permit the defendants tosend notice to the public library of the boroughcontaining a report of the committee which wasdefamatory of the plaintiff in that case. Thedefendants then took up the plea that the councilhad a common interest with the ratepayers in thesubject matter of the words complained of aiid thatit was the duty of . the council and /hr it wasreasonably necessary and proper for. the council,forthe conduct of its business, to publish the wordscomplained of by all reasonable and convenientmeans to the ratepayers.
lord Greene, M.R.quoted the words of Lord Atkinson J—
"It was not disputed, in this case on eitherside, that a privileged occasion is, inreference to qualified privilege, an occasionwhere the person who makes a conmunication hasan interest or a duty, legal, social, ormoral, to make it to the person to whom it is
Hawamanna v. De Silva . (Abdul Coder, JJ
made, and the person to whom it is so made has.,a corresponding interest or duty to 'receiveit. This reciprocity is essential."
These words are very similar to the defence putforward by the respondents in these proceedingsthat the respondents have a duty to inform thepublic and the public have a right to receiveinformation of what is taking place in Parliament..Lord Greene went on to say :
"I cannot see that it can . possibly be saidthat the council was under any duty to makethat communication to ratepayers. At thatstage the matter was, in a sense, sub judice,because the committee's report by itself couldhave no practical value unless and until ithad been considered by the council and thecouncil had come to some decision on if. . Thatdecision might have been, that – the report beadopted, or that the report be not adopted, orthat the report be referred back to thecommittee. The appointment of committees ofthis kind is part of the internal management'and administration of a body of thisdescription, and, whatever the. duty or theinterest, of the council might have'been" afterit had dealt with the report and come to somedecision oh it, .1 cannot see' that. at thatstage in the operation of the machinery.of theborough's administration there was any dutywhatsoever*to tell the ratepayers how > thewheels were going round. There may well havebeen a duty, or if not a duty.at any. rate, aninterest, of the- council . to inform, theratepayers of the result . of • its own.deliberation,"
As regards the. interest of the ratepayers toreceive information. His:Lordship.went on to say :
.184.Sri Lanka Low Reports[1983J1 Sri LR.
— -:;—
"It is obvious that ratepayers" areinterested in the proper administration andsafeguarding of their property and in the wayin which their council conducts its business,but wh*t; X any call the internal working ofthe administrative machine and all the detailsof its domestic deliberations in a case ofthis kind, are things which I should havethought ratepayers are not -in generalinterested in unless said until they emerge .inthe shape of some practical action orpractical resolution..”;
In the proceedings before us, theresolution was before the House and, if 1 may usethe words of lord Greene, it was a "domesticdeliberation" . in Parliament, and of "no practicalvalue unless and until if had been considered byParliament (Council)" and the Parliament (Council)had come to some decision.”•.in; Base case- (supra) at page 167,
The judgment of Goddard,!.J. is more interesting..He said:
"The statute does not, in my opinion, justifythe. council in doing or.oblige the council todo anything apprpaching that which they " did.If it had justified them in publishing, orobliged them to publish this report on thedoor of the town hall, the fa<jt that .a littleextra publicity was.given to it by sending itto the public libraries might merely result inthe plaintiffs being entitled to nominal, orsomething approaching nominal, damages, butthe statute does nothing of the sort."
Obviously, these words are intended to- mean thatthe defendants were guilty even if the statute hadpermitted the publication of defamatory matter.
SC. Hewamanne v. De Silva (Abdul Cader, J.J- 185
If a notice sent by the Council was considered an-offence, the position of the respondents cannot beany better. I am conscious that, the respondentspublished a resolution- before Parliament and notthe proceedings of aCounty Council and . Parliamenthas immunity unlike, the Council. The distin-ction would apply if Parliament had published orauthorised the publication, but in this case, therewas no such authority•*- It is. further to. be notedthat in these proceedings, it is not the defamationof an individual that is' in issue, . but .the veryinstitution of justice.:
This decision of mine will decide the subjectmatter of the charge before us; nevertheless, itis necessary to consider whether Speeches made inParliament can be reported if they affect judgesand the administration of justice.
In Surendra Mohanty v. Nabakrishna Choudhoury(24), Narasinghata, C.J. held that the words of theChief Minister in Parliament that "in manyinstances, the immaturity of the High Court isapparent" contains an. aspersion regarding thecompetency of the Judges of thi3 Court."
He went on to say further that the'words of theChief Minister that "in many instances the judgmentsof the High Cour ts were corrected ' by the SupremeCourt and'that "in many ins trices the Supreme Courtheld that the'High- Court has abused the powersgiven to it "tend to. lower ' the, authority of theHigh Court to a considerable7 extent and" bring theJudges into contempt." He said' that the use of theword' "abused" conveyed' the idea that the High Courthad abused its powers and "is indeed " objectionableand contains an imputation to the effect that thepowers were used improperly." Having discussed themerits on the facts in the speech of the Minister,the Lord'Chief Justice stated as follows
196Sri Lanka Ltw Anporw
"In my opinion, therefore, the Chief Ministerhad no justification for saying that 'in manyinstances'the Supreae Court has held that theHigh Court has abused its powers.-’ I have nodoubt that Jie aforesaid speech in the passageof Sri Rabakrishua Choudhury (to put itmildly) was somewhat hasty and uninformed andwould clearly amount to contempt of this.Court .(emphasis is mine) (p. 172) ;
Then, he went on to discuss at length the inraunitythat members of Parliament enjoy- and scguitted theChief Minister.
However, the pressmen.who reported the speech ofthe Chief Minister ware not so fortunate. If theChief Minister’s speech in P&rliaoent "clearlyamounts to contempt of Court", the Press could fareno bett^ and they could not Claim issaunity toayeid conviction. Tfee learned Judg« said of theme
"So far as the Editor, and the Printer andPublisher q£ H0trubhumi are concerned, I haveno doubt:-that they have' ceEsnftted contempt ofCourt bypublishing die speech of the QiiefMinister in their daily .The slight discrepancybetween the detract of die speech as given inthe daitir*,'; and as. given In the official reportisThey Cannot claim immunity
under clmuMf (2). of . Jart.194 because their
daily is Mt ah authorised publication. Inview^pf;:-'^p^'£ar unc^nditionai apology, I do notwish to J*ss any sentence on them, but I wouldditcat ,d»^>to V pay/ Rsi 1QQ/^ (one hundredun^);aiiim8tr to the petitioner." (p.177,para22) f
In Perera v. Peirfs, (67), we find the following: –
"Reports of judicial and parliamentaryproceedings andiit may be, of some bodies
SC-Mumtumw v. Dm Sihn {AtxM &der, l).187
which are neither judicial nor parliamentaryin character,stand in a claaa apart by reasonthat the nature of thalr activities is treatedas conclusively establishing that the publicinterest is forwarded by publication ofreports of their proceedings. – -As regardsreports of proceedings of other bodies, thestattvs of these bodies taken alone is hotconclusive and'it. is necessary to consider thesubject matter dealt with in the particularreport with which the Court is conceaaed. . Ifit appears that it is to th£ public interestthat the particular report should be publishedprivilege will attach. If malice in thepublication is hot present and the publicinterest is served by the publication, thepublication of the report must be taken forthe purpose of Roman Dutch law as being intruth . directed to serving that iateaejsit-Aaiaus' lnjuriandi is negatived.
"On a review of the facts their Lqmdshipsare of opinion that the public interest ofCeylon demanded that the contents Of theReport should be widely cosmunicated to thepublic.The Report dealt with a grave matteraffecting the public at large, viz .y theintegrity of members Of the Executive' Councilbf Ceylon, some of whom were found by theCommissioner to have improperly hccepttaSgratificstions.lt contained '' the reasonedconclusions of a Commissioner wh® acting understatutory authority, had held lit enquiry efidbased his conclusions on evidence which hehad searched for and aifted.lt had, beforepublication in the newspaper, been presentedto the Governor* printed as a Sessional Paperand made available to the public by theGovernor, contemporaneously with a Bill -Ubichwas based on the Report and which was.- to be■ considered by theExecutive Council. The djue
188Sri Lanka Law Reports[1983] 1 Sri LR.:
Hr1 ——“—““—
' administration of the affairs.1 of Ceylonrequired that:this Report.in the light of itsorigin, contents and. relevance to the conductof the affairs of.Ceylon , and the course oflegislation should ’ receive the widestpublicity.v
This case would not support the respondents forthe reason that what ires published was the findingagainst a Member of Parliament; If .the conduct ofa judicial officer had been investigated and afinding made against him so as to remove ;him fromthe sphere of- administration of -justice*the
publication of the finding, the charges, reasonsetc., the speeches made or the resolution ;.to removehim- are very much in the public interest . This casewill be an authority only in these- – circumstances.But the same thing cannot be said .– of a pendinginquiryi the charges made and the speeches made – onthat occasion. To adopt Lord Greene M.R.'s words:
The internal working of the administrative'machine and all the details of its : domesticdeliberations.. .. ..-.
are things which I should ; have thoughtratepayers are not in ^general interested/'
JAien spending resolutions, the charges andspeeches madeon that occasion are published, itcannot be said – that the public -interest, is-"forwarded" for the-reason that -the . judge has amental bar;to act .independently without fear orfavour and the ■Suitor s 'have .no -. confidence – in thejudge, as juabice'shouldnot only be done butappear to be done,/ too. .It is best under thecircumstances to await the ;findl 'outcome to releasethe proceedings to the public* -Even assuming thatthese are ofpublic interest,. we are thenconfronted with the further problem of a clash oftwo interests/ the right Of the public to receiveand the press to publish information of public
SCHewerrsnnt V. Da Sttva (Abdul Cader, J.)>.. IS9
interest and the need to safeguard the dignity of,the Courts against scandalisatloa. As I hold the ‘scales evenly between these two interests, thescale weighs heavily in favour of the latter;' forit is in the interests of the public that the.dignity of the Courts is maintained untainted as1has bean stated in the various quotations I have'given earlier. "It is a wrong done to the public-by weakening the authorit and influence of atribunal vrhich exists for their good alone." Cn adeeper consideration, in fact, there is no conflictbetween these two interests because in protectingthe dignity of the Courts, it is the public-interest that is served.
I am certain that the vast mass of the citizensof this country would prefer that the independenceand good name of the judiciary be protected even atthe expense of their right to know what ishappening in Parliament in respect of Judges andthe Judiciary. The failure of the press to publishmatters of this nature trill not prejudice thatsection of the public-who wish to keep themselvesacquainted with Parliamentary proceedings. To them,the Order Paper, the Hansard and other'- suchofficial publications authorized by the Parliamentare available. It is the mass publicity innewspapers that reach the common man that can caus£harm to the proper administration of justice.
There are two other decisions that are relevant.Ihave nothing further to add to the observations ofand distinction made by Wasiasundera, J. in respectof the Judgment of Lord Denning in Cook v-Alexander (23).
0, •- -*■
In Sambttu Nath Jah V. Kedar Prasad Sinha(BQ) theLegislature passed a resolution to hold, an inquiryinto certain matters pending before Courts. Histdecision to appoint a Commission of Inquiry was
Sri Lanka Law Reports[J9S3JJ Sri LR.
< published in the Gazette* -AMinistergave a copyof that notification to a pressman who publishedit.They were both found guilty of contempt on the. ground thatthere was no provisionthat
"allegations of the nature contained in thisoffending matter must be printed in the OfficialGazette or in the public press."In appeal thisjudgment was reversed as there was. in fact,statutory provision for publication in the Gazette.That judgment did not go into the question whetherthe .press had a right' to publish "that resolution.Since the Gazette is the official organ for publicinformation, it may well be that the Court took theview that it necessarily follows that the press wasentitled to publish that resolution after it had. been published in the Gazette. It may, however, benoted that what was published, was the resolutionafter it had been passedvSecondly, there wasstatutory provision for giving information of thatresol ution to the public by publishing in theGazette.
The question does arise what is.. the .need for..protecting the judiciary when there are amplesafeguards provided by the Standing Order ofParliament.In the Orissa case referred te (24),Standing Order 189 of Parliament fa as follows:
' 1 '
. ^'A member while speaking shall not:
refer to any matter or fact on which ajudicial decision is pending.
(A) reflect upon the conduct Of …… any
Court of Law in the exercise of its judicialfunctions.;"
, SC .Hawafnanim v. Oe Silva (Akdul Cader, J.) .JfX
In seeking to puni9h the Chief Minister for hisspeech, "It was urged that under the moderndemocratic set-up Governments are paroles ininnumerable cases in the High Court, that if theylose some cases they are inclined to develop,'litigant's mentality and to abuse the Judges inthe State Assembly taking advantage of the immunityconferred by Cl.(2) of. Art. 194. Irresponsiblestatements may then be made by members of the Government on the floor of the Assembly which,after due publication in the official reports,would cause irreparable harm to the prestige of . theHigh Court and thereby affect its independence."It was also urged that in many instances theopposition may not be effective in checking suchmisuse of the right of freedom of speech and thatthe Speaker of the Legislature also may not bevigilant enough to call any member to o&der if binexceeds the limit.
"Under the modern democratic system acontingency of this type may have to be faced,especially when both the Opposition and the Speaker
are not vigilant enough to see that no. nssnher ofthe Assembly abuses his right of freedom of speechon the floor of the House." Surendra MohaQty v*Nabakrishoa Choudhury (24).
While it is clear that our .■ Legislature,too, enjoys the right to discuss all matters,concerning the judiciary subject to ourown
Standing Orders safeguarding the judiciary, thereis no reason whatsoever to extend the inaunity tothe press whose right to publish 'stand is nobetter and no worse position than any other personor body in Ceylon,' Perera v. Peiris (supra)
Parliament is a responsible bod y . an d canwell be expected to preserve and foster the dignityof the Courts in the interest*of the publlc.Btit.anequal duty rests on the Courts to safeguard that
'Sri Lanka Law Reports
same dignity.
[1983]! Sri UL

There are the various safeguards in theStanding Orders. But there may come an occasionwhen Parliament may deem it necessary, forinstance, to discuss a pending case or to questionthe integrity of one or more judicial officer;? andthe question will then arise whether a newspaperreport of proceedings would be in the publicinterest.If Parliament publishes to the public orauthorises the publication, of the. proceedings, it~-would be for the reason that parliament hasdecided that it serves the public interest. But ifParliament gives no such authority and leaves thematter open to the discretion of the publisher,Courts will be the best authority to decide whethersuch report serves the public interest, not onlyfrom the point of view of keeping the publicinformed, but also from the point of view ofpreventing scandalising of Court or diminishing itsauthority. The publisher is not prevented frompublishing such proceedings, but he would do so athis risk, .-
I find the respondents guilty.
. As regards punishment, this news^ itemcontained a matter which was much in the publicview as newspapers had been carrying news of thedecisions made against Mr. K.C.E. de Alwis and thesubsequent turn of events, of the complaint to theHon. President, the decision to appoint aCommission and the protest by the Bar Association.In the past, too, newspapers had carriedproceedings in Parliament as, for instance, theresolution against a former Chief Justice who wentto the Airport to send off a Prime Minister againstwhom there was an election petition pending beforehim. The proceedings before the PresidentialCommission had been carried extensively where theconduct of certain judges had been discussed 'muchto their disfavour. Vhen the respondents published
SC ■.Hewamanne v. De Silva (Abdul Cader, J.). 193
this particular item, it would have never been intheir mind to be on guard against a charge ofcontempt in view of the fact that such previousreports had never been the subject of any form ofaction. Even these proceedings were not initiatedby this Court, but by a Citizen, the petitioner.
Veerasamy v. Stewart (63), Soertsz J.Said asfollows at page 486 :
"No one desires to fetter unduly the freedomof the Press, least of all -Courts of Law, forthe -Press can be, and has' often been apowerful ally in the administration ofjustice, but it is essential that judicialtribunals should be able to do their work freefrom bias or partiality and that the right ofaccused persons to a fair trial should beabsolutely unimpaired."
Khanna, J. stated in Sanbhu Nath Jah v. Kedar
Prasad Sinha (80):
"It would follow from the above that theCourts haive power to take action against aperson who does an act.or publishes a writingwhich is calculated to bring a Court or Judgeinto contempt or*to lower his authority or toobstruct the due . course of justice or dueadministration of law. As intention of thecontemner to cause those consequences is not anecessary, ingredient of contempt of Court andit is. enough , to show, that his act wascalculated to obstruct or interfere with thedue course of justice,. .and administration oflaw, there would be quite a number of caseswherein -the contempt alleged would be of atechnical nature.. In such … cases., the . Courtwould exercise circumspection and judicialrestraint in- the matter of taking action forcontempt of Court. The Court has to take into
194 .Sri Unto Urn topoittf1963] 1 Sri LR.
account the surrounding circumstances and thematerial facts of the case and tin conspectusof then to cone . to a conclusion Whetherbecause of some contumacious conduct or othersufficient reason the.person proceeded againstshould be punished for contempt of Court."
Gajendragadkar, C.J. was quoted in the Mulgmokarcssrtf: (78) referred to at page 743:
"We ought newer to forget 'that, the power topunish for contempt* large as it is, mustalways be exercised cautiously* wisely, andwith circumspection.Frequent or indiscriminateUse of this power.in anger or irritation wouldnot help to sustain the dignity or* status of. -the court, but may sometimes affect itadversely. Wise Judges never forget that the. host way to sustain the dignity and status oftheir office is to deserve respect from thepublic at large by the . quality of theirJudgments* the fearlessness^ fairness andobjectivity of their approach,* and by therestraint, dignity and decorum which theyobserve, in their judicial conduct."
Krishnar Iyer,J. stated as follows:
"The cornerstone of the contempt law is theaCcoanodation of two constitutional values-theright tif free speech and -the right ttiindependent justice. The ignition of contemptaction should tie substantial and mala fideinterference with fearless judicial action,not fair comment or trivial reflections on thejudicial process and personnel."
Having stated these principleSj the order he madeagainst the respondent was- as follows
"Many values like free press, fair trial.
SCHmmmann* v. D» Silva (Rodrigo, J. j195
judicial fearlessness and community. confidencemist generously enter the verdict………..
These diverse indicators^carefully considered*have persuaded oe to go no further* by aunilateral decision of the bench.This closure
puts the . lid on the proceedings
without pronouncing on the guilt or otherwiseof the opposite parties."
In these proceedings the respondents, it is agreed,had no malice but merely reproduced a cotton on theorder paper of Parliament which was sent to then asit was sent to other media. It had been a practiceto publish such proceedings of Parliament where theJudges have been criticised and no action had beentaken before against such publications. They haveaffirmed that they had no intention whatsoever ofslandering the Court or bringing the Court or thejudges into disrepute.
Under all these circiKustances» 1 am cl the opinionthat appropriate order would be to affirm the Roleand to discharge the respondents, without
I have had the advantage of reading indraft the leading judgment proposed by , my brotherWanasundera, J.and I cannot help but admire hisindustrious discussion of a vast array of ;cas^9.,decisions, monographs andtext writers cited to up,by the three Counsel appearing -for the petitionerand the two respondents and the Attorney'^Senorhlhimself appearing as amicuB reflecting, industry and'painstaking research behind their submission , inthe absence of any direct authority on the point.Ve 'are unanimously agreed that'the Rule should : notbe pursued further and I desire to express uiy "lineof thinking which differs from thatof my JMotherWanasundera, J.only in emphasis.! stall accorim^y
196 .
Sti Lanka Law Reports-[1983] 1 Sri LR.
be brief and avoid repetitious references to cases,decisions and material Of a like nature.
’’The law on this Subject (that is contempt ofCourt) is and must be founded entirely on publicpolicy" – Per Lord Reid in A,G, v. Times NewspaperLtd.(12). Such policy is naturally informed by thejudicial outlook of the time and age.What is lookedat with stern disapproval at one time to rein insocial indiscipline may be regarded with anindulgent eye at a more relaxed, time.Indigeneoustraditions and culture , colour , outlook andattitudes. Deep respect for elders, teachers,clergy, judicial institutions and authority areacknowledged facts of our prevailing culturenotwithstanding inroads by permissive, activity,both political ' and social; administration ofjustice must not permit it to deteriorate bybecoming permissive itself.
"Thefe is an abundance of empiricaldecisions upon particular instances of conductwhich has been held to' constitute contempt ofCourt. There is a dearth of rational explanation oranalysis of a general concept of contempt of Courtwhich is common to the cases where it has., beenfound to exist." Per Lord Diplock in the SundayTimes case (12) .That is because each individualJudge took .his own view, of the public policy.to be followed in each case no. doubt derived, fromclear implications from the , constitution, andjudicial decisions.We must therefore consider theappropriate public policy or the policy of the law..to .be applied in this matter. But let me firstexamine the genesis of this issue.
Representations have been made by no lessa person than a judge himself. The representationshave been made not in a haphazard or irresponsiblemanner. They have been made to His Excellencyhimself. His Excellency thereupon had referred the
, i
SC :Hewamanne v. De Silva (Rodrigo, J.)797
matter to the Parliament which under theConstitution is the body empowered to investigateand, if the allegations are proved, to present anaddress for removal in the Parliament, in themanner specified in the Constitution. To this endthe Parliament took the initial step of introducinga resolution to appoint a Select Committee toinvestigate. It was this resolution that appearedin the Order Paper of the Parliament for 8 March1983 and it was this Order Paper that was publishedin the Daily News the day before with the full textof the resolutions appearing therein giving thenames of the Judges concerned as they appeared inthe text.
‘Hie Daily News it must , be observedpublished this merely as a news item of interest tothe public in its' ordinary course of business.Nobody alleges any ulterior motive to it. That itis also a parliamentary proceeding is, in my view,wide of the question. That the matter arose in theParliament is an isolated fact in this context – orJust one circumstance in the whole business.
It is ironical, but nevertheless true,that this resolution had it been confined to theprecincts of the Parliament would not be a- scandalof the Court within its authoritative definition -See Rex v. Gray (40) Per Lord Russell, C.J. at page.62 and Awbard v. A/G for Trinidad Tobago.(57) at
page 709, but the moment it is allowed to seekpublicity, in the media in particular, outside theParliament, it falls within the definition of"scandalising the Court". Such the – implicationof Judicial decisions."The Court here is not facedwith a choice between two conflicting principles,as was argued, between freedom, of expression andpublic interest in the administration of justice.It is self-evident that no reader of the resolutionin the "Daily News" is going to have that catharticconfidence in the rightness and integrity of a
[1983] 1 Sri UL
-198Srt lmka Law Reports
decision handed down By the Judges concerned. Letus look at it this way. There is no provision forthe interdiction of the Judges pending the SelectCommittee investigation and they Bust continue tohear and.decide cases in the meantime. It must bea traumatic, experience for the litigants to have tosubmit to a case being heard by these Judges in thecircumstances. How did this result come about ? Itis the publication. Freedom to communicate andreceive information can be destructive of both thecommunicator and the recipient at times. It cancreate violence among the community at a time whencommunal passions have been aroused.Under EmergencyRegulations proclaimed during such disturbancesfreedom to publish news having a tendency tovlafl&ae passions or otherwise to createdisturbances is curtailed or censored altogether.
. person having, 'the public internes* rtfi ' heart at“times.l#se tfeat'scill. dispute /the -abed-.for. -muchcurtailment. . Likewise when the authority of thehighest judicial institution is threatened by apublication which has the potential to createunrest, among the public, does it hot create theneed for a degree of censorship ? If it is rightfor the political authority to clamp a censorshipat an executive level at a time of serious communalunrest, why is it not right for. judicial authorityto clamp a censorship on publications of the naturepreferred b° in tire field of administration ofjustice ? The judicial device to achieve thisResult is thelawof contemptof Court.This law issui generis. It has its own dictates. It is a law'Jborn of an inherant jurisdiction to protect thejudicialmachinery against attacks from any quarterpot at. the dignity of . Judges but at judicialauthority in the interests of . law "and order inwhich a country must be concerned as devoutly abwith any other of its important affairs. So thatth« lew of contempjt is in a class apart from anyother branch of law like qualified privilege in
■sc . newammne v. De SStva (fkxM&tb Ji)' JW*
reporting Pari-iameatary proceedings or proceedingsof a Court of law. The law of contempt vests theCourts with an unfettered authority where a•oftfeempt has been committed against it within its.authoritative definition to decide on any course ofaction, it thinks fit in pursuit of its policy. Sothat as Lord Diplock has said, the decision onmatters of contempt has to be empirical and basedon public policy founded on the need to maintainpublic confidence in the integrity of Courts andthe judiciary.
Great stress was laid on the immunityaspect of this issue but hardly any on its publicpolicy aspect.- This being a publication of areport of a Parliamentary proceeding, it was arguedat length, attracted qualified privilege just asmuch, if not more, as a report of a judicialproceeding. Qualified privilege, it appears, hasfive reasons to support it in so far as it relatesto reports of judicial proceedings.Two of thereasons namely, the one founded on the Court beingopen to the public is not applicable toparliamentary proceedings as the Parliament is notopen to the public in the way the Courts are, andthe other, that the publication of judicialproceedings enables the public to obtain aknowledge of the law by which their dealings andconduct are regulated, also does not apply toreports of parliamentary proceedings. But it iaclear that originally and in principle, there arenot many different kinds of privilege but ratherfor all privilege there is the same foundation ofpublic interest. The term "public interest" hasalsd several meanings. What is the meaning to beascribed to the public interest alleged to exist inthe publication in question ? It is in the publicinterest to maintain public confidence in .Judicialinstitutions. Is this public interest advanced bythe resolution being published at this stage? Indefamation cases reports of Parliamentary
Sri Lanka Law Reports[1983Jl.Stf (JL
proceedings are protected as the legitimate concernof the public with the proceedings of Parliamentoutweighs the concern of the individual with theloss of his reputation in which the public by. andlarge may not be interested.But not so with publicconfidence in the administration of -justice» ; Inwhich every member of the public is concerned .‘ Athreat to judicial authority can shake the socialorder to its foundations .So that thepublic
interest behind qualified privilege isofa
different category altogether.
Two judicial pronouncements, namely.that"reports of judicial and parliamentary proceedings
stand in a class apart by reason that the.
nature of their activities is treated- asconclusively establishing that the. public interestis forwarded by publication of reports of theirproceedings" – per Lord. Uthwatt in Carers vr Petris(67) and that "the object (of the Act , of,Settlement) v&s to secure that, the Judges shouldhold office independently of any political or 'oteher.influence and should be removed only for the mostserious judicial misbehaviour and then in the.–moat,public and open manner", – per Lord BirkenheadLord Chancellor, Shetreet, Judges on Trial, – lendstrong support on the face of them in favour ofimmunity argued for the respondents. But when weexamine the cases where public interest attachingto reports of findings against the integrity' ofpublic functionaries is discussed, it appears thatthe public interest has been said to be served bythe publication only where the investigation hasbeen completed and a considered verdict arrived at- lAllbutt v. General Council of – Medical- Education,and Registration ($0) and Perera v. Peiris (supra).In the former case the headnote reads : "Held alsothat the publication of the minutes of the Council,containing a report of their proceedings comprisinga statement that the name of a specified medicalpractitioner has been removed from the Register
.sc. .
Hewamanne v. De Silva (Rodrigo, J,).
or the ground that th the opinion of the Council hehas been guilty of infamous conduct in. aprofessional respect, is, if the report be accurateand published bona fide and without malice,privileged, and the medical practitioner cannotmaintain an action of libel against the Council inrespect of the publication." In the second casementioned, the Privy Council states "On a reviewof the facts Their Lordships aret of opinion thatthe public interest of Ceylon demanded that thecontents of the report should be widelycommunicated to the publiC.The report dealt witha grave matter affecting the public at large,, viz:integrity of members of the Executive Councilof Ceylon, some of whom were found by theCommissioner improperly to have acceptedgratifications. It , contained the reasonedconclusions of a Commissioner who, acting underStatutory authority, had held an inquiry and basedhis conclusions on evidence which he had searchedfor and sifted."
The statement of the Privy Council quotedabove that "reports of parliamentary proceedingsstand in a class apart by reason that the nature oftheir activities is treated as conclusivelyestablishing…!." is not meant in my view to be aproposition of law of a "blanket" character,applicable even outside the common law ofdefamation. It is not meant to be an eternaltruth. In the field of common law of defamationthe statement is true as the interests of thepublic in the proceeding of Parliament, as I havesaid, stands out as against the infinitessimallysmall chance of injury to private character and theequally small interest of the public in it. Butthis is not so in the case of blasphemous,seditious or obscene proceedings in parliament.If I am right in this, I am also right in sayingthat the proposition mentioned is not true in
-jfX/t§H kadka Mamr Reports/ITOBI Sti kJL
delation to a report of a parliamentary proceedingcontaining a scandal of the-Court.Such a report, inmy view, cannot advance the public interestinvolved, that is, in maintaining thepublic
oonfidence in the authority of the judiciary.Thepublic interest in information relating toproceedings of Parliament per se . is whollydisproportionate to the injury to the publicinterest in maintenance of judicial authority:,caused by a publication of a scandal to it.
therefore, think that this publicationattracts contempt of Court but, as far as the DailyHews is concerned,.I hold that the Rule should notbe pursued further. The Press should: voluntarilyobserve as the voice of the community silence wheaconfronted with matters -of thisnature the
publication of which, it is self-evident, is not.productive of any public benefit but onthe
contrary destructive beyond remedy of as .almostreligious faith that the community holds in . theintegrity of this institution and its capacity togrant relief. It is this faith that averts civildisorder and resort to estra—judicial remedxes.
Rule confirmed but not pursued further axsi ,Bapondemts discharged.