In the Matter of ARMAND DE SOUZA, Editor of the Ceylon Morning Leader

009-NLR-NLR-V-18-In-the-Matter-of-ARMAND-DE-SOUZA,-Editor-of-the-Ceylon-Morning-Leader.pdf

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‘ *
Present: Wood Renton C.J., Pereira J., and De Sampayo A.J,
In the Matter of Armand de Sovza. Editor of the *
Oeylon Morning Leader.
Contempt of Court—Publication in a newspaper—Magistrate open tosuggestions from the police—Mind difficult of access to a convictionhostile to the interests of a European planter—Courts Ordinance,s. of—Scandalizing the Judges—Is the law obsolete
The defendant wrote in the Ceylon Morning Leader newspaper—
That the Police Magistrate of Nuwara Eliya, having been
himself at one stage in his career in the Ceylon Police-Force, is “partial tothepoliceview”; thatheis
often opento assistanceandsuggestions from police
officers;andthatthey wouldnot receive” this
tremendous advantage ” but for the fact that heimproperly conducts part of his business in cham-bers. “Whois theretoBaywhat happensinhis
chambers? ” We find no predisposition in ourminds to discredit the reports we have received.”
” That he defers far too much to planters, and that his
mind isverydifficult ofaccess toaconvictionhostile
to the interests ol a European planter.”
Held,—(1) That this language justified the innuendoes respec-tively, (a) that the Police Magistrate did not exercise his ownjudgment,” but allowedhimself – tobeimproperly influenced-bythe
ptolice; (b) that he favoured the European planting community, and:could not be relied upon to do justice when a European planter waaa party to a legal proceeding.
That where the defendant repudiated these innuendoes revidence to prove the allegations of fact, on which his commentswere founded, and the truth of his own interpretation of hislanguage, was irrelevant as a justification of the innuendoes.
That thedefendant’s language,as interpreted inthe innuen-
does, amounted to contempt of Court.
That the law of contempt by scandalizing the Court is. inforce in Ceylon.
Wood Benton C.J.—” The Court has itself to – interpret themeaning of the language used, and in doing so to consider bow itwill be understood by the majority of those whom it readied.” •
fJlHE rule served‘on defendant was as follows: —
In the matter of Armand dc Souza, editor of the Ceylon MorningLeader, and in the matter of section 61 of the Courts Ordinance, 1889.
Upon reading the editorial articleentitled ” Justiceat Nuwara
Eliya,” appearing in the issue of the Ceylon Morning Leader of Monday,December 7, 1914, which said article had reference to the administration,ofjustice in theDistrict and PoliceCourts of NuwaraBliya-Hatton
*7Thomas ArthurHodson, Esq., at present District Judgeand Polioe
2J. N. A 00008(8/50)
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1914,Magistrate of the said Courts: It is ordered that Armaud do Sousa,
editor of the judnewspaper,doappear in person beforeu»at ©or
at Hutftadorp on Saturday, December 19, 1914, at H o’clocktU Souza °* the forenoon,, and show causo why he ahouM not be punished for anoffence of contemptcommittedagainstand in disrespect oftheauthority
of the said District and Boiice Courts of Nuwara EUya-HoWon in themanner following:—
(1) By publishingor allowing tobe published in thew»Aeditorial
article the following words:—
“ Proctors complain that throughout the progtess of utrial the
Judge istoo oftenopento &a*ib'<ance and suggestions from
the police officer. No* wonder:he has been a. Police
Superintendent himself- aud is partial to the police view.
In open Court he might not. be given this tremendousadvantage to his Inspectors. But who is there to say whattappoaa in his chambers? Possibly the reports that havereadied us are exaggerated. But that, too, is the result ofhis own line of action. There is uo means o! checking whatoccurs inhis chambers,andallwe can say isthat judging
from the tearing haste and slipshod manner in which hedischargedhis functionsontheBench on oueoccasion, we
find no predisposition in our mind to discredit the reportswe have received. ”
*
meaning thereby that. iu the administration of justice as PoliceMagistrate, the said Thomas Arthur Hodson docs not exercise his ownjudgment, but allows himself to be improperly influenced by suggestionson the part of the police.
(2) By publishing or allowing to bo published in the said editorialarticle the following words : —
” Ho defers far too much to planters, and his mind is very difficultofaccess to aconviction hostile to theinterestsof aEuropean
planter,”‘
meaning therebythat, intheadministration ofjusticeas ajudicial
officer, thesaidThomasArthurHodson favoursthe Europeanplanting
community,andthat hecannotbe relied uponto dojusticewhen a
European planter is a party to & legal proceeding.
van Langenbery, K.G., 8.6. (with him V. Grenier, Acting C.C.)appeared in support of the rule.—The words themselves proved thecontempt. Counsel emphasized the words appearing in the firstcount: M We find no predisposition in our minds to discredit thereports we have received, ” and, in the second count, the passage” He defers far too much to planters, and his mind is very difficultof access to a conviction hostile to the interests of a Europeanplanter. ” The suggestion is clear that if’the interests of theplanters were in any way in question, .the Judge would be in favourof deciding the case in favour of the planters.
Bawa, K,G* (with him Samarawwhrenui and G. H. Z. Fernando).-for the defendant.—The innuendoes put upon the passages are notcorrect. . What the defendant said is true, and he can prove it. ;It is not a contempt of Court at all. and if untrue, the only remedy.
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the proper remedy to be edopted, would be to institute proceedings 1914.against him for libel./n
As regards the first passage, there is not even a criticism of theproceedings of a court of law. There is merely a disclosure of cSouxawhat occurred in chambers.
Mr. de Souza then read the following statement:—
Some time in August I received several complaints from proctorsand others of the irregular methods and impatient temper of theNuwara Eliya Judge. Later on, during September, I received freshcomplaints. Early in October I received a statement, signed by twoproctors, containing similar complaints. I felt quite satisfied that thecomplaints must be true, but having decided to go to Hatton for abrief rest, I deferred dealing with the matter until I could make inquiriesin person. I went to Hatton on November 22, and on the 28rd I spentover two hours in the Court, and was satisfied of the truth of thecomplaints after making full inquiries from those present. I myselfobserved that the Judge arrived about 11.80, tried cases in chamberstill 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 wrotetwo editorials, one published on the 4th instant and Jhe other on the7th instant.
I did not know the Judge, and had never, to my recollection, writtenabout him. I have no feeling whatever against him. I acted through-out from a sense of my duty as a public journalist, anxious for thesafer and more careful administration of justice both at Hatton and8t Nuwara Eliya. I intended no contempt of his Court, and nothingwas further from my thoughts and intensions than to bring theadministration of justice into contempt; my object and anxiety through-out being the exact contrary, namely, that the people of Hatton andNuwara Eliya should have justice administered to them in a mannercalculated to inspire better confidence in the administration of justice.
I gathered that the people were dissatisfied and felt aggrieved.
1 did not in my editorial articles state or suggest that Mr. Hodson didnot exercise his own judgment in the administration of justice. Norare the words ised by me reasonably capable of such a meaning.
They mean that Mr. Hodson does honestly and conscientiously, exercisehis own judgment, but that he allows such judgment to be influencedby suggestions and statements improperly made by the police.
I did not in my editorial article state or suggest that Mr. Hodson, inthe administration of justice, favoured the European planting com-munity, or that he could not be relied upon to do justice when aEuropean planter is a party to a legal proceeding. Nor are the wordsused by me reasonably capable of such a meaning. They mean thathe concedes privileges to planters which he does not to others, andthat he relies on them overmuch, and does not make due allowance forthe fact that they are parties, and may even honestly overstate theircase. I made it clear that there was no room in Mr. Hodson’s casefor any suspicion of unfairness, and that he did his duty conscientiously,and that, I was satisfied that he was a straight, honest man, mistakenin the methods lie adopted of doing justice.
8
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W14. Mr. Bawa proposed to call Mr. Hodson. [Wood Benton C.J.—In matter ^^nt for ?]
qf Armanddo Souta
In order to show .that liis proceedings in relation to the police orEuropean planters justified the remarks made by defendant. Mr.Hodson for the most part held his proceedings m camera. Thedefendant was entitled to prove what the Magistrate’s attitudein chambers was towards police- officers and planters who comebefore him ns parties.
If a Judge committed any public breach of propriety, or disregardedthe requirements of the law, any member of the public could callattention to it, whether in a newspaper or otherwise. It was not acontempt of Court, if those statements were true, to set before thepublic what the public must be presumed to know. That was theobject for which the law required all legal proceedings to be held inpublic by section 80 of the Courts Ordinance, and they were entitledto criticise the proceedings.
[De Stunpayo A.J.—The charge is not that you misstated facts,but that you. drew improper inferences.]
The fact related against- the Judge is that the Judge is too open tosuggestions from police officers. Is it to be admitted that it is afact that Jie defers overmuch, .that his mind is difficult of access toa conviction hostile to planters ?
[Wood Benton C.J.—The only questions are whether the innuen-does correctly interpret the meaning of the defendant’s language,and, if so, whether they can be justified.]
The defendant wants to show that the statements were facts,and that the comments were correct. If the facts upon which thestatements were made were .true, the comments were justified.
The defendant’s position is not very different from the positionof n member of the Legislative Council, who on learning of the factscould bring those facts forward before the Council. Every editorof iv newspaper was entitled to free speech and expression of opinionsin any manner he might choose as regards the manner in whichjustice was administered. Short of scandalizing a Court- andinterfering with justice in n pending case, they had absolutefreedom of comment, either by speech or expression in the press.
The defendant wants to prove the manner in which the Magistrateallowed himself to be influenced. If I am given the opportunityI wish to prove this, that the Judge is too prone to the influenceand suggestions from n police officer.
As regards the second charge, the defendant wants to prove thatthe Magistrate deferred too much to planters. That, as a matterof fact, he. conceded privileges to planters that he did not concedeto anybody else. He proposed also to prove that his mind was notfree of bias to a conviction hostile to the interests of a planter.
[The Court was of opinion that the evidence which the defendantproposed to call was irrelevant. He was charged, not with .the
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allegations of fact in the article, but with the comments on those 1W4allegations as interpreted in the innuendoes, which he not only did jw <s7sietfernot propose to justify but repudiated.]
[The Chief Justice called attention to .the innuendoes, and asked ifthey were capable of being defended.]
In order to do that it is necessary to prove that the facts fromwhich these comments are drawn are true.
[Pereira J.—Assuming that these statements are true, are theseinnuendoes justified ?]
If the facts were true, it was a moderate and temperate article.
The innuendoes placed upon the passage by the rule were notjustified. What the article complained of was the methods’ theJudge adopted, the result of which was that his honest bona fidejudgment was influenced.
[Counsel proceeded to explain the meaning of the article taken asa whole, and contended that .the rule had not properly stated theeffect of the article.]
The summary process of attachment should not have beenadopted in this case. If the defendant had misstated, he shouldhave been prosecuted for criminal defamation. There were nocomments on pending cases. The power to attach and commitbeing arbitrary and unlimited is to be exercised with the greatestcaution, and is only to be resorted to where the administration ofjustice would be hampered by the delay involved in pursuing, theordinary criminal process. Halsbury’s Laws of Engfcnd, vol. FI?.,pp. 281 et seq. The contempt known as 44 Scandalizing the Judges ”is obsolete in England.
[The Court referred counsel to Queen v. Cray.1] That was ascurrilous and personal attack on the Judge himself. [WoodBenton C.J. referred to section 51 of the Courts Ordinance and toI Browne 317.]
The point whether scandalizing a Court may be punished underthe law of contempt was not argued there.. Counsel cited Y*lvertonCase 2 Law Quarterly Review, vol. XVI., p. 292.
[Wood Benton C.J. referred to R. v. Almon,* R, v. Hastes.4]
In any event .there was no attempt to scandalize the Court.
The criticism of a Judge may be a libel, but was not a contempt ofCourt. The reasons given in England for holding that prosecutionsfor scandalizing a Court was obsolete in England ought to applyhere.
van Lan-genbcrg, K. C., 8.-0. submitted re MacDermott. 5
Bawa, K.C., stated that the defendant was unable to tender anyapology.
. 1 (1000) 2 Q. B. 96.* (1705) WUmat’s Opinions 296.
: s (1809) A. C. 188.* (1000) 1 K. B. 82, at pp. 40 and 41.
5 (1000) h. B. 1 P. C. 260; 2 P. C. 941.
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1914. December 19, 1914. Wooi? Benton C.J.—
defendant, who is admitted to be the editor of the Ceylonfa Sauza Morning Leader, appears in answer to a rule, Issued at the instanceof this Court itself, to show cause why he should not be committedfor contempt of the authority of the Police Court of Nuwara Eliya.The rule itself sets out two passages in an article published in thedefendant’s paper of 7th instant, which form the basis of tbe presentcharge. The article is entitled “ Justice at Nuwara Eliya. ” Itforms the second of a series of two articles dealing with the adminis-tration of justice in Hatton and in Nuwara Eliya. The defendant’scounsel has himself placed both those articles in their entirety beforeus. They contain an elaborate series of statements with regardto alleged irregularities in the conduet of the Courts of first instancein Hatton and Nuwara Eliya. With the statements contained inthose articles, in so far as they deal with alleged matters of fact, weare here in nowise concerned. There exists in this Colony, as inevery part of the British Empire, ample machinery for the due andfair investigation of charges against judicial officers, and not oneword shall be said in this judgment which can in any way interferewith such an investigation as to the alleged irregularities here inquestion, should it be deemed by tbe proper authorities .to be advis-able. The only questions before us are whether, in the first place,the innuendoes placed in the rule on the language of the two passagesforming the basis of the charge are correct; and, in the second place,whether, if so, the comments involved in .those passages can bedefended. The first innuendo states that the effect of the languageused by the defendant is to suggest that, in the administration ofjustice as Police Magistrate, Mr. Hodson does not exercise his ownjudgment, but allows himself to be improperly influenced by sugges-tions on the part of the police. The defendant has read to us astatement in which he personally disclaims the interpretation put bythe innuendo upon his language. We have carefully considered thatstatement. It is obvious, however, that it is by no means exhaustiveof the situation. The Court has itself to interpret the meaning of thelanguage used, and in doing so to consider how it will be understoodby the majority of those whom it reached. It was published in adaily 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 hasreceived at the Bar, or to consider how far the character of the warpof one line of criticism was modified by woof of a different texture.They would read the article as such articles are read every day byordinary people, who have no time, even where they, have the capa-city to carry out such a process of balancing, and who would beguided in the long run by the general impression which the articleleft on their minds. If we apply that test, it seems to me that theinnuendo which the rule has annexed to the first of the passages inquestion is justified by its language. It is suggested that the Police
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Magistrate, having been himself at one stage in hie career in theCeylon Police Force, is ” partial to the police view that he is toooften open to assistance and suggestions from police officers; andthat they would not receive “this tremendous advantage” butfor the foot he improperly conducts part of his business inchambers. Then follow the significant words:”Who is there to
say what happens jn his chambers ? ” The writer goes on to referto reports which had reached him in the some connection, and says:” We find no predisposition in our minds to discredit the reports wehave received. ” Applying to this language .the test of our ownintelligence, and keeping in view the considerations that I havealready dealt with as to the class of persons who peruse it, it seemsto me that it clearly suggests that the Police Magistrate hnd beenin the habit of allowing his judgment to be improperly influencedby suggestions on the part of the police. The innuendo on thesecond passage presents no difficulty. The language used is asfollows:”He defers far too much to planters, and his mind is
very difficult of access to a conviction hostile to the interests of aEuropean planter. ” The innuendo rightly interprets these wordsas meaning that the Police Magistrate favours the European plant-ing community, and that he cannot be relied upon to do justice incases in which planters of that community are concerned. Thenest point to be considered is whether or not .the language so usedamounts to contempt of Court. To this question there can, I think,be but one answer. We are entitled to take notice of *he fact thatthe passages in question have been criculated broadcast throughdistricts iu which at least- a large proportion of the cases that comebefore the Police Court are cases in which the* police and plantersare concerned on the one hand and the rest of the community onthe other. Can it seriously be doubted that, under these conditions,the immediate effect of the publication of such language must be toparalyse the confidence of every section of (he community, otherthan the classes supposed to be unduly favoured, in the fairnessof the administration of justice. ? If this be so, the passages inquestion come within the meaning of section 59 of the Courts Ordi-nance as being calculated to interfere with the maintenance of the” proper authority and efficiency ” of the Court, and if they hadbeen verbally uttered in the presence of (he Court itself, they couldhave been punished by the Police Magistrate under that section.The suggestions embodied in these passages are, therefore, equallywithin the jurisdiction of the Supreme Court in the case contem-plated by section 51 of the Courts Ordinance, namely, where thecontempt has been committed ex facie curi<i. It was strenuouslyargued at the Bar that the contempt, if any, disclosed by thepassages in question would come under the head of ” scandalizingthe Judges, *’ and that no such branch of the law of contemptexisted in this Colony. To that proposition I am not prepared to
1914.
Wool/
Renton C.-T.
In the matterof Armanide Souza
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assent. In the ease of McLeod v. Aubyntl Lord Watson, LordWooi^ Macnaghten, Lord Morris, and Lord Davey concurred in an expres-rsion of opinion that, while committals for contempt of Court byIn the mauer scandalizing a Court itself have become obsolete in England, in6ma^ colonies the enforcement, in proper cases, of committal forcontempt of Court for attacks on the Court may be absolutelynecessary to preserve in such a community the dignity of andrespect for the Court. The Privy Council held in that case that nocontempt had on the facts been committed, inasmuch as the publi-cation of the alleged libel consisted merely in the innocent handingof the newspaper that contained it by one friend to another, bothof them being ignorant of its presence. But there is nothing in thajudgment to indicate that the libel itself would not ,have beenpunished if the persons responsible for its publication had beenbrought before the Court. The doubt, suggested in AfcLeod v. St.Aubyn,l as to how far committals for contempt by scandalizingthe Court were still in force in England, has been removed by (hedecision of three Judges of the King’s Bench Division in the caseof Queen v. Gray 3 where a scurrilous attack upon a Judge whichhad no reference to any pending judicial proceedings was punishedby the Court on summary process. In the still later case of E. tr.Davies,8 the Judges adopt the language of Chief Justice Wilmotin the old case of 72. v. Almon* in which the word “ authority, °as it occurs in proceedings of this kind, was interpreted as meaning“ the deference and respect payable to the Judges of the Court, “and in which it was directly held that the remedy of scandalizingths Court existed under the English common law. There is localauthority on the same point. I need only refer to the judgment ofSir John Bonser C.J. and Justices Lawrie and Withers in In reCappers.5 The language used by the defendant in this case, there-fore, is contempt, and is punishable as contempt by the process bywhich he has been brought before this Court. There remains onlythe question of punishments At this stage I desire to quote a fewwords from the famous, although undelivered, judgment of ChiefJustice Wilmot in the case of 72. v. Almon. 4 “ The constitutionhas provided very good and proper remedies for correcting andrectifying the involuntary mistakes of Judges, and for punishingand removing them for any voluntary perversions of justice. Butif their authority is to be trampled upon by pamphleteers and newswriters, and the people are to be told that the power given to theJudges for their protection is to be prostituted to their destruction,a Court may retain its power for some little time, but I am sure itwould instantly lose all its authority, and the power of the Courtwill not long survive the authority of it. ’’ With a few verbal
* (WPP) A. C. 549.s (1906) 1 K. B. 91.
3 (100(f) 8 Q. B. 86.* (1765) Wilmol’s Opinions 856. •
* (1890) 1 Br. 817.
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changes, these words are directly applicable to the oase before us.There is, as I have said, ‘no kind of doubt as to the right of any memberof the public to criticise, and to criticise! strongly, judicial decisionsor judioial work, and to bring to the notice of the proper authoritiesany charge whatever of alleged misconduct on the part of a Judge.But it is a very different matter .to claim that irrespon-sible persons, upon ex parte statements, are to be at liberty to invitethemselves into the judgment seat, and to scatter broadcast imputa-tions such as those with which we have here to do. The law ofcontempt, as has often been pointed out both’ in England and inthis Colony, exists in the interests, not of the* Judges, but of thecommunity. The Supreme Court would be false to its duty if itpermitted attacks of this kind to go unpunished.
Armand do Souza, you are convicted by the uranimous judgmentof this Court of contempt of the authority of the Police Court ofNuwara Eliya, and you are sentenced to undergo one month’ssimple imprisonment.
Pereira J.—I entirely agree.
Db Sampayo A.J.—I agree.
♦
!M1
Wool*
Rkotoh OJ.
Jn the matterof Armo’.tdde Souza