IN RE U. N. WIJETUNGE

103-NLR-NLR-V-70-IN-RE-U.-N.-WIJETUNGE.pdf


514
T. S. FERNANDO, J.—In re Wijetunge
Present :T. S. Fernando, J., Abeyesundere, J., andSri Skanda Rajah, J.In re U. N. WIJETUNGE
APNIGEX/39j6o—In the master of a Rule under section 47
of the Courts Ordinance.
Commissions of Inquiry Act {Cap. 393)—Sections 10 and 12—Offences punishable asoffences of contempt of the authority of the Commission—Limited number only—Courts Ordinance {Cap. 6), ss. 3, 47, 37—Civil Procedure Code, ss. 109, (if),137 {2), 140, 294, 293, 630,636, 682 (2),713,717,7IS—Penal Code
{Cap. 19), ss. 2, 3,4—Industrial Disputes Act, s. 40A {1)—Applicability ofmaxim expressio unius excluaio alterius.
No acts and omissions are punishable by the Supreme Court under section10 of the Commissions of Inquiry Act as offences of contempt against or indisrespect of a Commission of Inquiry except the offences specified in section12 (1) of that Act. Accordingly, a person who writes an article in a newspaperm in disrespect of a Commission of Inquiry cannot bo punished for an offence ofcontempt.
Rule under section 47 of the Courts Ordinance.
H. W. Jayewardene, Q.C., with D. S. Wijexcardene and A. Ameresinghe,for the respondent. V.
V. Tennekoon, Q.C., Solicitor-General, with H. L. de Silva, CrownCounsel, as amicus curiae.
Cur. adv. vult.
June 29, 1966. T. S. Fernando, J.—
Acting under section 2 of the Commissions of Inquiry Act (Cap. 393),the Governor-General on the 6th May 1963 appointed a Commissionof Inquiry consisting of three members to inquire into and report on theworking and administration during the period 1st January 1960 to 6thMay 1965 of the Co-operative Wholesale Establishment establishedunder the Co-operative Wholesale Establishment Act (Cap. 126), withspecial reference to certain matters specified in the warrant ofappointment.
Sometime after the Commission had commenced public sittings tohear evidence there appeared in an issue of the “ Sun ” daily newspaperof the 16th September 1965 an article entitled “ High Cost of Livingand the Government ” purporting to have been written by the respondent.That article contained the following passage regarding the Commissionof Inquiry referred to above :—
“ A Commission is inquiring into the affairs of the C. W. E. justnow." But we fear the Commission will unduly drag out the inqtiiryuntil another election is on the way. ”
T. S. FERNANDO, J.—in re Wijetunge
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The Commission requested the respondent to appear before it on the21st September 1965. The respondent did so, accepted authorshipof the article and stated that he meant no disrespect to the Commission.He was called upon by the Commission to show cause on the 24thSeptember 1965 why he should not be reported to this Court for havingcommitted the offence of contempt of the authority of the Commission.The respondent appeared by counsel before the Commission on the said24th day of September and repeated that he meant no disrespect to theCommission, and counsel for him contended (before the Commission) thatthere is no provision in the Commissions of Inquiry Act for punishmentof a contempt of this nature, if indeed it was a contempt at all. Hesubmitted that the only contempts punishable under section 10 of theAct are those acts or omissions declared by section 12 (1) of the saidAct to be contempts against or in disrespect of the authority of theCommission. The Commissioners, however, stating that in their opinionthe respondent has committed a contempt against or in disrespect ofthe Commission made a report to this Court, and the Court issued aRule nisi on the respondent requiring him to show cause why he should*not be punished under section 47 of the Courts Ordinance (Cap. 6).
Section 47 of the Courts Ordinance empowers the Supreme Courtto take cognizance of and to try in a summary manner any offence ofcontempt committed against or in disrespect of the authority of itselfor of any other Court which such other court has not jurisdiction undersection 57 to take cognizance of and punish. Section 57 confers aspecial jurisdiction on every District Court, Court of Requests or Magis-trate’s Court to take cognizance of and punish (by the procedure andwith the penalties in that behalf by law provided) every offence of con-tempt committed in the presence of the Court itself and all offenceswhich are committed in the course of any act or proceeding in the saidcourts and which are declared by any law for the time being in force tobe punishable as Contempts of Court. That section itself expresslyindicates that this special jurisdiction was conferred for the purpose ofenabling the Courts concerned to maintain their proper authority andefficiency.
On behalf of the respondent it was contended before us that aCommission of Inquiry is in no sense a “ Court ” which the CourtsOrdinance defined (in section 3) as denoting a Judge empowered bylaw to act judicially alone, or a body of Judges empowered by law toact judicially as a body, when such Judge or body of Judges is actingjudicially. As was said in Brajnandan Sinha v. Jyoti Narain V* inordertoconstitute a court in the strict sense of the term, an essential condition isthat the Court should have, apart from having some of the trappings ofa judicial tribunal, power to give a decision or a definitive judgmentwhich has finality and authoritativeness which are the essential tests ofa judicial pronouncement
1 A. J. R. (1956) S. C. 66.
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T. S. FERNANDO, J.—In re Wijetunge
A Commission of Inquiry is merely a fact-finding body reporting tothe Authority that appointed it (in this case the Chief Executive of theState), and no consequences flow by reason of the Act (Cap. 393) fromthe findings embodied in that report. They are neither authoritativenor binding.
Mr. Jayewardene, on behalf of the respondent, argued that the onlyacts or omissions which the Act contemplated as punishable are those“statutory” contempts defined in section 12 (1), i.e., the failure toobey summons, refusal or failure without cause (a) to give evidenceand (b) to produce a document or other thing. These failures or refusalsrender a person so failing or refusing guilty of the offence of Contemptagainst or in disrespect of the authority of the Commission. Section10 of the Act which enacts that “ every offence of contempt committedagainst or in disrespect of the authority of a commission appointedunder this Act shall be punishable by the Supreme Court or any Judgethereof under section 47 of the Courts Ordinance as though it were anoffence committed against or in disrespect of the authority of thatCourt ”— so the argument proceeded—was intended to punish only the“ statutory ” contempts above referred to.
The learned Solicitor-General who appeared before us as amicuscuriae, and whose assistance at the argument I acknowledge thankfully,did not suggest that a Commission of Inquiry exercised anything neara judicial function, but he contended that what section 10 of the Acthas effected is a conferring on the Supreme Court of a jurisdiction topunish contempts committed against or in disrespect of the authorityof a Commission of Inquiry. He pointed out that section 10 has notdefined what constitutes an offence of contempt of a Commission just assection 47 of the Courts Ordinance did not attempt to define whatconstituted an offence of contempt of a court. He submitted that,as in the exercise of its jurisdiction under section 47 the Courthas not declined to act on the ground that the offence of contempt ofcourt has not been defined, so in the exercise of its powers under section10 of the Act the Supreme Court should evolve a body of precedents inthe same way that the Court has evolved a body of precedents whichserves now as a guide in understanding what constitutes a contemptof a court.
I am inclined to agree with the contention of Mr. Jayewardene thatsection 12 which defines the ‘ statutory ’ contempts has the effect oflimiting the operation of section 10 to those acts or omissions describedin section 12. It is correct to observe that section 12 should ordinarilyhave preceded section 10, but the order in which the sections appear inthe enactment has no particular significance in the context here, andin any event the Act has to be considered and construed as a whole.
Our attention was drawn by the learned Solicitor-General to severalsections of the Civil Procedure Code (i.e., sections 109 (2), 137 (2), 140,294, 295, 650, 656, 682 (2), 713, 717 and 718) as indicating that a number
T. S. FERNANDO, J.—£« re Wijelunge
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of acts and omissions have been expressly made punishable as contemptsof court or have been deemed by law to be contempts of court, and thatthese are by no means exhaustive of the acts and omissions that constitutecontempt of court. It was therefore submitted that tha class of actsmentioned in section 12 of the Act are themselves not exhaustive of thecategory of contempts which the Act contemplated.
The reason for making this kind of non-exhaustive express provisionto which the learned Solicitor-General drew our attention is made intelli-gible, in my opinion, by a consideration of the judgment of the CollectiveCourt in the case of In re Ferguson 1. That was a judgment delivered inthe year 1874, at a time anterior to the enactment of the present CourtsOrdinance (No. 1 of 1889). Morgan A.C.J., delivering the judgmentof the Court, stated—(see p. 188)—that the power to punish for contemptsgenerally—a power which, with certain qualifications, is inherent inevery court—was not expressly given even to the Supreme Court bythe Charter of 1801 nor was it, on the other hand, expressly taken away.Regulation 2 of 1816 which purported to regulate the practice in criminalproceedings before Provincial and Sitting Magistrates’ Courts describedtherein as “ Inferior Courts ” expressly provided that nothing thereincontained “ shall be construed to extend or in any wise affect the pro-ceedings or authority of the Supreme Court That regulation furtherprovided for all cases of contempt to be transmitted to the AdvocateFiscal, for that officer to decide whether the accusation was fitting to betried before the Supreme Court or referred to an inferior jurisdiction.That Regulation was amended by Regulation No. 15 of 1820 whichauthorized the Provincial and Sitting Magistrates’ Courts of Colombo“ to punish by fine or imprisonment, or both, to the extent of theirgeneral powers in that respect, all contempts committed before thembefore their own view and also, upon proof, all contempts of their processor of the officers acting in the execution thereof”. The Regulationof 1820 expressly provided that nothing therein should be “ construedto extend to or in any wise affect the proceedings or authority of theSupreme Court ”.
The Charter of 1833 contained no reference to the power of the SupremeCourt or District Courts (the two Courts which that Instrumentestablished) to dispose of cases of contempt ; but it drew the distinctionbetween the two courts, and gave larger powers to the former. TheRules and Orders of Court framed under the authority of the Charter,and promulgated with that Instrument, provided for District Judgespunishing by fine or imprisonment, or by both if necessary, “all contemptscommitted before themselves, and also upon due proof all contemptsof their process or of their officers acting in the execution thereof ”.
The offence of contempt of court was one recognised by the Roman-Dutch law—see Voet Bk. V—Title 1—Section 2.-—(2 Gane’s translation,• p. 5)—and I nSight usefully refer here to section 4 of the Penaf Code
* (1874) 1 N. L. R. 181.
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T. S. FERNANpO, J.—In re Wijetunge
(Cap. 19) enacted in 1883 to provide a general penal code for Ceylon.While abolishing by section 3 thereof the Roman-Dutch criminal lawand enacting by section 2 that “ every person shall be liable to punishmentunder this Code, and not otherwise, for every act, or omission contraryto the provisions thereof, of which he shall be guilty within Ceylon”,it preserved, by section 4 “ the power heretofore possessed by the SupremeCourt or any Judge thereof of summarily punishing persons guilty ofcontempts of the said Court ”.
I have quoted extensively from the judgment of the Collective Courtas I think it indicates the explanation for or the reason why all the sectionsto which the Solicitor-General drew our attention providing expresslyfor the punishment of certain specified acts or omissions came to beenacted. After their enactment in that way, the District or otherCourt concerned received power to take cognizance of those contemptswhich might otherwise have had to be reported to the Supreme Courtto be adjudicated upon and punished by that Court. Merely because#the acts and omissions so declared to be contempts of court, are notexhaustive of the offences of contempt of court, it would be fallacious,in my opinion, to seek to find an analogy in bodies other than Courtsand to say that the acts and omissions expressly declared to be contemptsof a Commission are not exhaustive of the acts and omissions that canconstitute contempts of a Commission.
Section 12 (2) of the Commissions of Inquiry Act provides for thetransmitting by a Commission to tho Supreme Court of a certificatesetting out whether a person has committed any offence of contemptreferred to in section 12 (1), but makes no provision for transmitting acertificate in any other case. This consequential provision does lendsome little support to the argument on behalf of the respondent thatonly the c statutory ’ contempts are punishable, although one mustrecognise, as tho Commission itself has already observed, that it is farfrom conclusive of the validity of the respondent’s main argument.Moreover, the Commission is not thereby deprived of adequate or satis-factory means of communicating or reporting to the Supreme Courtan act or omission which in the Commission’s opinion is a contempt ofits authority provided the Supremo Court was empowered to takecognizance thereof and impose punishment therefor.
IMr. Jayewardene, however, brought to our notice section 40A (1) ofthe Industrial Disputes Act, No. 43 of 1950, as amended by Act No. 62of 1957 as affording an illustration of the kind of provision the legislationhas enacted when it intended to render an act bringing a body otherthan a regular court into disrepute a contempt of court. The absenceof such a provision in reference to acts bringing a Commission of Inquiryinto disrepute strengthens, in my opinion, the validity of the argumentthat tiie Commissions of Inquiry Act intended to publish only* the‘ statutory contempts ’ described in section 12 (1). The maximexpressio unius exclusio alterius is, in my opinion, also applicable here.
519
SRI SKAXDA RAJAH, J.—In re Wijetunge
•
Moreover, if the argument in support of making this Rule absolutecannot be placed higher than that the interpretation of the relevantprovisions admits of ambiguity, our duty is to favour a strict constructionof this penal provision.
In my opinion, however, the point we have here to decide admitsof no serious ambiguity. Any little doubt one might have been inducedto entertain has been dispelled by reference to the provisions of theTribunals of Inquiry Act, 1921 (11 Geo. 5, Ch. 7), which is of particularsignificance on the point I have hitherto discussed in this judgment.By section 1 (2) of that Act. >f any person—-
on being duly summoned as a witness before a tribunal makes
default in attending ; or
being in attendance as a witness refuses to take an oath legally
required by the tribunal to be taken, or to produce any documentin his power or control legally required by the tribunal to beproduced by him, or to answer any question to which the tribunalmay legally require an answer ; or
does any other thing which would, if the tribunal had been a
court of law having power to commit for contempt, have beena contempt of that court;
the chairman of the tribunal may certify the offence of that person tothe High Court …. and the Court may thereupon inquire
into the alleged offenceand punish that person in like
manner as if he had been guilty of contempt of the Court. Paragraphs(a), (&) and (c) of section 12 (1) of our Act (Cap. 393) appear to reproducein effect all that is there in paragraphs (a) and (b) of section 1 (2) of theUnited Kingdom Act ; but the omission to enact a provision similar toparagraph (c) of this last-mentioned Act, being deliberate, is a strongindication that the intention of the legislature was not to punish thingsother than those expressly described.
I have set out above the reasons why I reached the decision at theend of the argument that the Rule should be discharged and that wasthe decision of the majority of the Court.
Abeyesundere, J.—I agree.
Sri Skanda Rajah, J.—
I would respectfully adopt the view expressed by Holmes, J., inNorthern Securities Co. v. United States 1 that it is useless and undesirableas a rule, to express dissent. Therefore, I would content myself bystating that the submissions made by the learned Solicitor, and whichhave been set down at length by my brother T. S. Fernando, appearto me to be right.
1IV 3 TJ. S. 197 at 400.
Rule discharqed.