M. G. PERERA, Appellant, and A. V. PEIRIS et al., Respondents

039-NLR-NLR-V-50-M.-G.-PERERA-Appellant-and-A.-V.-PEIRIS-et-al.-Respondents.pdf


M. G. Perera v. A. V. Peiris
145
[In the Privy Council]
1948Present: Lord Uthwatt, Lord Morton of Henryton,Lord Mac Dermott, Sir John BeaumontM. G. PERERA, Appellant, and A. V. PEIRIS et al.,Respondents
Privy Council Appeal No. 2 of 1947S. C. 84—D. C. Colombo, 15,069
Defamation—Report of Bribery Commission—Public interest—Privilege—Malice—Animus injuriandi of Roman Dutch law—Ordinance No. 25 of1942—Sections 6 and 10.
In Roman. Dutch law animus injuriandi is an essential element inproceedings for defamation and where the words used are defamatory,the burden of negativing animus injuriandi is on the defendant.If malice in the publication of a particular report of any body is notpresent and the public interest is served by the publication, suchpublication must be taken, for the purposes of the Roman Dutch law,as being directed to serving that interest and will be privileged andthe animus injuriandi will be negatived.
Held, further, that the publication of the name of a witness was nota breach of the provisions of section 6 (1) of Ordinance No. 25 of 1942.
A
i aPPEAL from a judgment of the Supreme Court. The judgmentof the Supreme Court is reported in (1946) 47 N. L. R. 49.
O.O. Slade, K.C., with Stephen Chapman, for appellant.—If anyprivilege could attach to the publication in a newspaper of a fair andaccurate report of the proceedings before the Bribery Commissioner,it would attach only in so far, if at all, as they were open to the public.No privilege could thus attach to a report of any part of the proceedingswhich the Commissioner decided to hold in camera, and a fortiori toany part, the publication of which was not authorised by the Commis-sioner. If the publication was not made by the respondents with theauthority of the Commissioner under Section 6 (1) of Ordinance No. 25of 1942, it would be an offence under Section 11. The Commissionerdid not authorise the publication. The view of the Supreme Courtthat the respondents had his “ implied authority ” has no basis and isincorrect. The Commissioner in his report states that the questionof publication is not for him, clearly indicating that he was not authori-sing publication of his report or any part of it. D3 shews clearly it wasthe Governor who authorised the publication. There is no evidence toshew that the Governor had any over-riding power to authorise publi-cation. Section 6 has to be read in conjunction with Section 10 (6).Publication of the name or the evidence or any part of the evidenceof any witness heard in camera,.save with the authority of the Comm is -sioner, is illegal. The view of the Supreme Court is inaccurate, for itleads to the position that the words “ of the name ” are mere surplusage.7—x>.
13. N. A 86023-1,044 (1/49)
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JVL. Of. Jt'erera v. A. V. Fe-iris
In any event, this Commission of inquiry was not a judicial or quasi-judicial proceeding, so as to clothe with qualified privilege a fair andaccurate report in a newspaper of its finding and proceedings, evenif publicly heard.
[Mr. Slade at this stage stated that express malice is not beingalleged by him, nor was it alleged in any of the lower Courts.His argument would be that a qualified privilege did not in law ariseat all.]
N"o privilege, however, can under any circumstances attach to areport of judicial or quasi judicial proceedings which are not publiclyheard. There was no Us nor was the evidence inter 'partes. As suchthese proceedings are neither judicial nor g-wasi-judicial ; they are morein the nature of an administrative inquisition. The Commissionerwas in a position similar to that of a Medical Referee, who, it was heldin Smith, v. National Meter Go., Ltd-1 did not function as a judicialtribunal. See also O’Connor v. Waldron2.
The Supreme Court was right when it held that the Bribery Commissiondid not function as a Court.
Even granted that the Bribery Commission functioned as a Court,no immunity would attach to a report of proceedings not held in openCourt.
The respondent has also pleaded that it published the defamatorywords in pursuance of its duty as a newspaper to inform the public ofmatter which the public was interested in knowing ; this is untenable.For a valid plea of this defence, the defendant must show that he hadan interest or duty (legal, moral or social, of perfect or imperfect obligation)to make the communication and that the person to whom it was madehad a corresponding interest or duty to receive it. Can it he said thata newspaper as such has a duty even of imperfect obligation to publishnews ? Its duty does not go beyond the duty of a private individualto publish. In the present case, even on the assumption that the publichad an interest in knowing the defamatory matter, the respondent hadno interest or duty in disseminating it to the public at large. The caseswhere this defence has been upheld show, with two exceptions, thatthe publication was either to a defined or a limited number of persons,in whom an interest or duty clearly inhered. Neither of the two casesin English law, Allbutt v. General Medical Council3 and Adam v. Ward 4,where privilege attached to a publication at large, concerned a newspaper.In these cases, privilege attached on grounds peculiar to each case, andnot on the ground of a duty or interest in making a publication at large.
It is however submitted that in the present case, the defamatorywords did not relate to a matter in which it could rightly be said thepublic were interested. They are not germane to the Commissioner’sfinding of the px-ticular members of the State Council guilty of bribery.As such, the communication of the defamatory words is not protectedeven on the assumption that the Report was published on a privilegedoccasion.
1 {1945) K. B. 543* {1935) A. C. 76.
3 (1889) 23 Q. B. D. 400.* (1917) A. C. 307.
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In the defence of fair comment, every defamatory comment andevery defamatory inference must be based on facts proved to be true.This defence cannot be relied on by the respondent, for it cannot ariseunless the facts on which the comment is based are placed before Courtand proved to be true. There is no evidence of the facts on which thecomment was based ; in such a contingency, nevertheless, it is open toa party to prove that the comment is equivalent to fact, but he cando this only by raising the defence of justification. The defence of faircomment cannot therefore arise.
The Supreme Court has upheld the defence of justification. Thisdefence was not pleaded ; it however became an issue in the DistrictCourt because apparently the plaintiff's Counsel himself raised it. TheDistrict Judge held that the words were true in substance and in facton the ground that “ a presumption of regularity attaches to the findingsof the Commissioner, and, in the absence of proof to the contrary, thisCourt will hold that his findings are true and correct ”. But he heldthat it was not for the public benefit that they should be published andso rejected this defence. In the Supreme Court, according to the judg-ment of the Chief Justice, Counsel for the appellant “has not queriedthe finding of the District Judge that the words are true in substanceand in fact ”, but apparently, instead, argued that the finding of theDistrict Judge that their publication was not for the public benefit wasright. The Supreme Court, however, differed from the District Judgeand held that the publication of the words in question was for the publicbenefit and so upheld the defence of justification.
Despite this background, the defence of justification cannot arise inthe absence of positive evidence that every defamatory fact and everydefamatory imputation is true. The long line of cases where the defenceof justification was taken shew unambiguously and without an iota ofdoubt that unless the defamatory facts and imputations are proved byevidence to the satisfaction of the Court to be true, this defence cannotbe taken. A presumption on the absence of evidence cannot for thepurposes of the defence of justification afford any basis for a findingthat the facts are true. The Supreme Court was wrong in holding thatthe publication of the words in question was for the public benefit.Even if publication of the other parts of report was for the public benefit,publication of the statement relating to the appellant’s conduct as awitness was not for the public benefit. In addition, an illegal publicationcannot be for the public benefit.
The absence of animus injuriandi is not, in the Roman Dutch Daw,today, a substantive defence in itself. It is only by establishing one ofthe recognised defences in a defamation action, namely, Justification,Privilege, Fair Comment, Jest, Compensatio, Rixa or in certaincircumstances reproof by a superior, that a defendant can relieve himselfof liability for the publication of defamatory words.
This is the view taken by the South African Courts in Laloe Janoe v.Bronkhurst1; Jooste v. Classens 2 ; Tothillv. Foster 3 ; Mankowitz v. Oeyzer *.
(1918} T. P. n. 732.3 (1925) T. P. D. 857.
(1916) T. P. D. 1684 (1928) O. P. D. 138.
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M. O. Perera v. A. V. Peirie
The ruling of the Supreme Court, that the absence of animus injuriandiafforded a substantive defence in itself is contrary to the Roman DutchLaw as it exists today.
On the issues of damages, the District Judge misdirected himself.An assessment of Rs. 5 is unsustainable. The District Judge hasrightly refused to award contemptuous damages of one cent; he has onthe contrary assessed damages at a figure, which gives no indicationof the principles he had adopted in so assessing it. The Supreme Court,in view of its findings on the other issues, did not give its mind to thisissue. In the circumstances, a new trial on the issue of damages isnecessary.
N. Pritt, K.C., with Sir Valentine Holmes, K.C., R. K. Handooand C. E. L. Wichremesinghe, for the respondents.—In the Roman DutchLaw of defamation the existence of the animus injuriandi is an essentialpre-requisite of liability. This proposition represents the unanimousview of the various commentators on the Roman Dutch Law and alsoof the contemporary text books on the subject. It was therefore openin the Roman Dutch Law to a defendant to negative liability by provingthe absence of animus injuriandi on his part. Voet in He Injuriis(47.10.20) states “ Next with regard to the person who is allegedto have occasioned an injury the fact that he had entertained no intentionto injure (animus injuriandi) is a good ground for his not being heldliable in an action for injury. The fact that such intention was absentis to be gathered from the circumstances of each particular case ; for anintention of this kind has its seat in the mind, and in a ease of doubtits existence should not be presumed ”, (de Villiers’ Translation, p. 189.)
The Roman Dutch Law, therefore, gave a defendant a very widescope in rebutting a presumption of animus injuriandi. It was opento him to rebut it in anyway he could ; it was a matter of evidence.In fact what are today regarded as the established defences in defamationare, in their origin, various different ways of negativing animusinjuriandi. With time, however, they developed into stereotypeddefences whereby a presumption of animus injuriandi could be rebutted.The scope of some of them like privilege and fair comment are fairlyclearly defined, but that of the others, like rixa, compensatio, jest andmistake, is less clear. This development has been taking place overthe last fifty years or more and is still taking place. The absence cfanimus injuriandi still exists as general category providing a substantivedefence in itself. The Roman Dutch Law, under the rule of absenceof animus injuriandi, still retains the capacity to extend a defence intoa sphere not covered by any of the established defences.
In Ceylon—and this is a ease governed by the Roman Dutch Lawas developed in Ceylon—the defence of the absence of animus injuriandiexists as a vital, living force. This defence has been uniformly andconsistently adopted by the Supreme Court of Ceylon in Silva v. RamanChetty 1 ; David v. Bell 2 ; Cantlay v. Vanderspar 3 ; Gulich v. Green 4.The position at present in South Africa was stated in the followingwords by the Appellate Division in Basner v. Trigger5. “It has not
1 (1895) 1 N. L. R. 225J.
* (1913) 16 N. L. R. 318.
• (1914) 17 N. L. R. 353.4 (1918) 20 N. L. R. 180.
K (1946) A. D. 94.
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yet been finally decided in our law whether the already establisheddefences which rest historically on the negativing of animus injuriandiare today exhaustive. If it is certain that they are, it would seem tobe unnecessary and pedantic to continue to employ the expression' animus injuriandi ’ in defining the delict of defamation. It wouldonly be useful to retain the expression as part of the definition, if thepossibility exists that a defendant may set up as a defence the absenceof animus injuriandi without bringing himself within any establisheddefence.”
Originally in the earlier cases, the South African Courts had no doubtthat the absence of animus injuriandi afforded a-substantive defence.Vide Sennet v. Morris 1 ; Botha v. Brink 2; Dippenaar v. Hauman3 ;Smith Co. v. S. A. Newspaper Co. 4. Later on, in two provinces, theTransvaal and the Orange Free State, a different view was taken.In Laloe Janoe v. Bronkhurst5 De Villiers, J.P., expressly disagreed withthe rule in Botha v. Brink (viz., that presumption of animus injuriandicould be rebutted “ by such other circumstances (examples of whichare given in Voet 47.10.20) as satisfy the Court that animus injuriandidid not exist”) on the ground that it was based on a misreading of thispassage in Voet. De Villiers, J.P., went on to add “ But if. one refersto section 20 in the passage from Voet, upon which the learned ChiefJustice relies, one sees that the only cases where that can come in, inthe absence of justification or privilege, is where there is either a mistakeor where the statement was made as a joke or where compensation canbe relied upon. Short of that, a party using defamatory language ofanother must either justify or must show that it was a privilegedoccasion.”
This interpretation of Voet 47.10.20 by De Villiers, J.P., is clearlyinaccurate. In this passage Voet first of all states the general principlethat absence of animus injuriandi is a valid defence, and that the factof its absence is to be gathered from the “ circumstances of each particularcase ”, Voet then enumerates a series of topical illustrations (someof them now obsolete) in exemplification of. this principle. Nowherein the whole of 47.10.20 is there the suggestion that these illustrationswere exhaustive of the circumstances in which the absence of animusinjuriandi could be proved.
The next case of Tothill v. Foster 6 is based on the view taken byDe Viliiers, J.P., in Laloe Janoe v. Bronkhurst, and the passage citedabove is adopted with approval by Curlewis, J.P. Mankovitz v. Geyzer1,does not discuss the relevant cases. Jooste v. Classens8 does not limitin any way the view that the absence of animus injuriandi affords asubstantive degree.
Even if these cases are regarded as manifesting a trend towardsdenying the availability of the defence of absence of animus injuriandi,it is a trend manifested only in two provinces and not in the whole ofSouth Africa.
1 10 S. C. 226.6(2Q1S)T.P.D.at 165.
* Buch. {1878) p. 1*0.s(J025)p.P.D.857.
Bach. {1878) al 1397{1928)O.P.D.138.
1 {1906) 23 S. C. 310.« {1916) T. P. D. 727.
1*J. N A 86023 (1/49)
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M.. Q. Perera v. A. V. Petris.
The other defences in this case would then he seen as basicallymanifestations of the absence of animus injuriandi though, as theyexist today, their scope and the manner of their application providestrong evidence of the great influence of the Common Law of Englandon their development.
Sessional Paper No. 12 of 1943—The Report of the BriberyCommissioner—is a document that bears a two fold character ; on theone hand, it is a sessional paper, and on the other it is the Report of theBribery Commissioner. Regarded in either way, its publication isnot illegal.
The Report of the Bribery Commissioner was the document whichthe Commissioner sent to the Governor. When the Governor publishedit as a sessional paper, it acquired a different character ; it became a publicdocument issued by the Governor. It came no longer within the termsof the Special Commission (Auxiliary Provisions) Ordinance, No. 25of 1942. The defence of privilege can be founded on this fact.Regarded as the Report of the Bribery Commissioner, its publicationby the respondent did not contravene the provisions of Section 6 (1)of Ordinance No. 25 of 1942. The Governor must be presumed to havehad the authority of the Commissioner to publish his report. It wasthe Governor who appointed the Commissioner to inquire and report.Sad the Commissioner published his report his act acquires legalityon the presumption of his giving himself authority. Is it unreasonableto presume when his master who appointed him published his report,
“ the servant ” gave his master the requisite authority ?
Further, section 6 (1) was valid only as long as the Commissionerwas functus officio. On his ceasing to be so, on forwarding his reportto the Governor, the prohibition in Section 6 (1) no longer applies.
In any case, as the Supreme Court held, Section 6(1) does not prohibitpublication of the name of a witness. Finally, the publication wouldbe exempt under Section 6 (2) as having been made “ bona fide for thepurposes of the inquiry ”. The phrase “ purposes of the inquiry ”would include the immediate purpose of inquiring and reporting whethergratifications were given or taken, as well as all matters necessary toserve the ends of the inquiry. The publication was to justify in theeyes of the public the finding of the Commissioner and this is an ultimatepurpose of the inquiry.
Regarding the defence of justification, there were findings by boththe District Court and the Supreme Court that the defamatory wordswere true. The Supreme Court too has on record the admission of theappellant’s counsel that the words were true.
Sir Valentine Holmes, K.C., continued for the respondents.—It issubmitted that the publication in question is privileged both in the RomanDutch Law and also in the English Common Law. At the present day inEnglish Common Law, the defences in libel and slander are generallyclassified under certain broad categories, but it is usually lost sight ofthat these categories are based on cases, which are the manifestationsof the principles of the Common Law, as they evolved.
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In the middle of the 18th century the answer to the question “ Whatare the defences in the Common Law ? ” would have been “ Justification”,in the sense that the circumstances of publication showed that theprivate interest of the individual had to surrender to the public interest.
In the beginning of the 19th century the answer was (a) Truth, (6)Existence of circumstances negativing the presumption of malice butrebuttable by proof of actual malice, and (c) Existence of circumstancesin which the presumption of malice was negatived but the plaintiffwas not allowed to prove actual malice.
This change in the last half of the 18th century evoked considerablecontroversy as to whether truth in itself was an adequate defence. Oneview was that public benefit, along with truth, was necessary toconstitute a defence. But this controversy was decided in civilproceedings (with a contrary decision in criminal proceedings) in favourof truth alone.
It is from about the 19th century that Judges first began using theterm “ privilege ” (though they confess it is an inapt term), in the senseof the existence of circumstances negativing the presumption of malice.See Gilpin v. Fowler1. Judges were then faced with the difficult taskof having to state what would be the circumstances in which thepresumption of malice would be negatived. They proceed on twolines :
Of corresponding duty and interest : see Toogood v. Spyring 2;Harrison v. Busch 3 ; and
Circumstances when the publication was made for the public
benefit in the public interest. See Flint v. Pyke 1 * 3 4 *, which, incidentally,is the first ease where judges explained how reports of judicial proceedingswere privileged.^
These two principles went together hand in hand. They werenot considered contrary to each other, though it so happened that thefirst principle was met with more frequently in case law. The secondprinciple was adopted in Cox v. Feeney s. In Way son v. Walker 6, faircomment is seen appearing out of privilege. They both sprangout of “ circumstances negativing malice ”. Henwood v. Harrison1comes very- close to the facts of the present case.' It dealt with apublication made by the Queen’s Printer on the direction of the Lordserf the Admiralty and publicly sold. In Merrivale v. Carson8, theheadnote states that in that case the Court of Appeal disapproved ofHenwood v. Harrison. This headnote is not correct. The Court of Appealexpressly stated in the later case of Thomas v. Bradbury 9 that it did notdisapprove of Henwood v. Harrison. See also Allbutt v. GeneralMedical Council10. Spencer Bower in his Law of Actionable Defamation(2nd Ed. p. 127) collects these cases and cites them as illustrative ofthis second principle, which in his terminology affords a defence onthe ground that the matter published was “ fit and proper that the
1 (1854) 9 Exch. 615 at 623.
3 (1834) I. C. and M. R. 181.
3(1855) 5 E. and JB. 344.
4(1825) 4B. and C. 473.
6 (1863) 4 F. and F. 13.
* L.R.4 Q. B. 73.
7 L.R. 7 C. P. 606.
3 (1887) 20 Q. B. D. 275.
(1906) 2 K. B. 627.
(1889) 23 Q. B. D. 400
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LORD TJIHWATT—M.. O. Per era v. A. V. Peiris
public be informed thereof This principle continues to live in theEnglish and in Ceylon Law ; in neither is there a “ closed shop ” regardingprivilege.
The fact that a proceeding is not a judicial proceeding does not meanthat publication of a report of such proceedings has not a qualifiedprivilege attached to it. Howard C.J.’s view is wrong. He hasconfused the question of absolute privilege to proceedings in a Courtof Justice with qualified privilege to reports of such proceedings.Whether the proceedings before the Bribery Commissioner were a Courtor not, a newspaper report of them would have a qualified privilege.
The facts of the present case, viz., that the taking of bribes was commontalk in Ceylon, that the State Council wanted the allegations probed,that the Governor appointed a Commissioner, that the State Councilgave statutory powers to him (Ord. 25 and 26 of 1942), that the Commis-sioner investigated the allegations and issued a report, and that a billwas passed to exclude from the State Council members found guiltyby the Commissioner, all indicate that not merely the Commissioner’sfindings, but how he arrived at them, were matters of burning importanceto the public.
Slade, K.C., in reply.—If the view is accepted that the absence ofanirrvws injuriandi affords a substantive defence, then the untenableposition would arise that proving belief in the truth of a defamatorystatement, even though it is in fact untrue, would afford a completedefence ; a defendant could then avoid liability by proving that hehonestly believed a statement to be true. In law, a newspaper has noduty to publish anything ; it has no general duty to inform the wholepublic of Ceylon that a witness gave false evidence. In this case, onlythe Commissi#ner had a duty and a right to so inform the Governor.
Cur. ady. vult.
October 13, 1948. Delivered by Lord Uthwatt.—
This is an appeal from the judgment of the Supreme Court of Ceylonaffirming the dismissal by the District Court of Colombo of an actionbrought by the appellant Dr. M. G. Perera in which he claimed damagesfor defamatory libel from the respondents who are the printer and ownersof a newspaper called The Ceylon Daily News. The libel complainedof appeared in the issue of that paper of the 25th May, 1943, andconsisted of an extract from the published report of a Commissionerwho had been appointed under statutory powers to enquire into certainmatters. The extract ran as follows :—-
“ Dr. M. G. Perera who gave evidence was completely lacking infrankness and pretended that he knew very much less about thetransaction than he actually did.”
The respondents took all defences. They denied that the words weredefamatory—a formal defence in the circumstances. The other defenceswere not formal. They pleaded justification in the sense that thestatement was true and that its publication was for the public benefit.Pair comment was pleaded. Privilege was relied on upon two grounds,first, that the proceedings before the Commissioner were judicialproceedings and the extract was part of an accurate report of those
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proceedings, and second, that, apart from the supposed judicial natureof the proceedings, the circumstances were such that the publicationin the newspaper of the Report was made on a privileged occasion.Neither the pleadings, the issues settled in the course of the proceedings,nor the conduct of the case at the trial, in any way limited the field ofdefence open to the respondents.
On the settlement of the issues in the action it was made clear thatthe appellant did not set up express malice with a view to destroyingany qualified privilege that might exist.
The action arose in the following circumstances. It appears that in1941 there were rumours in Ceylon that bribes had .been offered to andaccepted by members of the State Council. On the 13th August, 1941,the Governor, pursuant to a resolution passed by the State Council on the15th May, 1941, set up a Commission of Inquiry under the Commissionsof Inquiry Ordinance (No. 9 of 1872). Under the terms of the appoint-ment Mr. de Silva, EL.C., was appointed the Governor’s Commissionerfor the purpose of inquiring into and reporting upon the followingquestions :—
(а)whether gratifications by way of gift, loan, fee, reward, orotherwise, are or have been offered, promised, given or paid tomembers of the existing State Council, with the object or for thepurpose of influencing their judgment or conduct in respect of anymatter or transaction for which they, in their capacity as membersof that Council or of any Executive or other Committee thereof, are,have been, may be, or may claim to be, concerned, whether as ofright or otherwise ; and
(б)whether such gratifications are or have been solicited, demandedreceived or accepted by members of the existing State Council as areward or recompense for any services rendered to any person orcause, or for any action taken for the advantage or disadvantage ofany person or cause, or in consideration of any promise or agreementto render any such services or to take any such action, whether as ofright or otherwise, in their capacity as members of that Council orof any Executive or other Committee thereof.
The instrument of appointment then contained the following directionby the Governor :—
“ And I hereby authorise and empower you to hold all suchinquiries and make all such investigations into the aforesaid mattersas may appear to you to be necessary ; and I do hereby requireyou to transmit to me a report thereon under your hand as earlyas possible. ”
To assist the Commissioner in this particular inquiry a furtherOrdinance (No. 25 of 1942) was passed which empowered the Commissionerto hear the evidence or any part of the evidence of any witness in camera.Sections 5, 6 (1) and (2) and 10 (6) of the Ordinance run thus :—-
“ 5. The Commissioner may, in his discretion, hear the evidenceor any part of the evidence of any witness in camera and may, for'such purpose, exclude the public and the Press from the inquiry orany part thereof.
154:
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6.—(1) Where the evidence of any witness is heard in camera,the name and'the evidence or any part of the evidence of that witnessshall not be published by any person save with the authority of theCommissioner.
A disclosure, made bona fide for the purposes of the inquiry,of the name or of the evidence or part of the evidence of any witnesswho gives evidence in camera shall not be deemed to constitutepublication of such name or evidence within the meaning of sub-section (1).
10. Nothing in this Ordinance shall—
(6) prohibit or be deemed or construed to prohibit the publicationor disclosure of the name or of the evidence or any part of theevidence of any witness who gives evidence at the inquiry, for thepurpose of the prosecution of that witness for any offence underChapter XI of the Penal Code.”
The Commissioner duly held his inquiry, and on the 3rd April, 1943,the Commissioner made his report to the Governor. In light of theclaim to privilege, the general nature of the Report and the circumstancesin which it was produced are of importance. It appears from the Reportthat the Commissioner by public advertisement and otherwise madewide appeals to persons who were in possession of relevant informationto place that information before him. Despite the immunity givento witnesses by the Ordinance, the public response was small and of the124 witnesses examined only 12 were volunteers. All the evidencewas taken in camera. There were made to the Commissioner allegationsof gratification in respect of matters which came before open Counciland in respect of matters which came before the Executive Committee.The chief items in respect of which complaints were made were :—
appointments to various offices ;m
nominations to Municipal and Urban Councils and
decisions on policy, the repercussions of which resulted in
advantage or disadvantage to private parties.
The Commissioner states in his report (para. 16) that suggestionswere made against 19 Councillors. In some cases, he states, theallegations were made upon slender material. He found that eightmembers, whom he was able to identify, had received gratifications.Among that number were three European members who had takengratifications openly. He also came to the conclusion that there werein all probability four other members whom he had not been able toidentify who received gratifications. In other cases he found roomfor strong suspicion. He stated that there was a widespread beliefthat the number of Councillors who received gratifications was muchgreater than the number he had found so to do. On consideration ofthe evidence, the reading of debates in the Council and articles in thePress he had no doubt that this belief was honestly held, but he thoughtthat popular belief was exaggerated.
The Commissioner in the main body of the Report dealt with thebroad results of his inquiry, reserving details to appendices. In each
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appendix lie states the witnesses examined on the particular subjectmatter, makes his comment, summarises the evidence and gives hisfinding.
Among the matters investigated by the Commissioner was an affairwhich he called the “ Arrack contract gratification Incident ”, and itis in connection with his treatment of this affair that the appellantappeared on the scene. The appellant, it should be stated, was, amongother activities, engaged in distilling arrack. He complied with theCommissioner’s request to attend, and his evidence was taken in camera.The arrack incident is dealt with by the Commissioner in paragraph 18of his Report and in Appendix C.
Paragraph 18 and Appendix C were as follows :—
“ 18. Arrach Contract gratification incident.—There was evidencebefore me that in 1939 contractors to the Government for the supplyof arrack decided to pay to the same four members a sum of aboutRs. 2,000 for the purpose of having their contracts extended withoutcompetition from outside. There is evidence, which I believe, thatmoney for this propose was paid to one of the members, now dead,Mr. C. Batuwantudawe, but there is no evidence that it was paidby him to the others. I did not for this reason call upon the membersnow- alive to answer the allegation as it cannot be held against themthat, with regard to this particular incident, they actually receivedthe money. This matter is more fully discussed and reasons for myview given in Appendix C. ”
“ Appendix C
Allegation of payment op gratifications to Messrs. C.Batuwantudawe, E. W. Abexgunasekera, E. R. Tambimfttf,and H. A. Gtoasekbra for the purpose of securing theirSERVICES IN THE EXECUTIVE COMMITTEE OF HOME AFFAIRS INTHE MATTER OF THE EXTENSION OF A GOVERNMENT CONTRACT.
Witnesses examined.—Messrs. M. F. P. Gunaratne, X>. E.Seneviratne, W. F. Wickremasinghe, M. G. Perera, C. M. Rodrigo,and A. J. Siebel.
Allegation.—These witnesses gave evidence with regard to thealleged payment of gratifications to four Councillors, Messrs. C.Batuwantudawe, E. W. Abeygunasekera, E. R. Tambimuttu, and H. A.Gunasekera, for the purpose of securing their services in the ExecutiveCommittee of Home Affairs. Certain contracts held by distillers for thesupply of arrack to Government were due to expire on 30th April,1939. The allegation was that money was paid to the Councillorsmentioned in order to secure their support to a proposal thatthe contracts should be extended without calling for tenders. Theproposal itself was put forward by the Excise Commissioner forreasons which I need not go into. It was ultimately adopted byGovernment.
Finding.—My finding upon this matter is that without a doubt asum of Rs. 2,000 was paid by the distillers to Mr. Batuwantudawe.The distillers earmarked this .sum for payment to members of the
166LORD UTHWATT—M. G. Perera v. A. V. Peiris
Executive Committee. They believed that portions of the sum wouldfind their way to the other Councillors mentioned. One distiller atleast thought that the money would be paid direct to them. Othersreceived the impression that it would be paid through Mr. Batuwan-tudawe. Mr. Batuwantudawe is now dead and there is no evidencethat he distributed money among the others. I do not think thatany direct payments were made to them.
Comment.—In 1939 there were eight distilling plants in Ceylon, theproprietors of which were supplying arrack to Government. Thesesuppliers consulted each other in matters of common interest and wereloosely associated with each other as a body without a formal set ofrules or any of the other formalities adopted by Associations proper.They regarded Mr. D. E. Seneviratne, proprietor of the DiyalagodaDistillery, as Treasurer, and Mr. W. E. Wiekremasinghe, proprietorof the Anvil Distillery, as Secretary. They collected money from timeto time as occasion required for meeting various expenses.
Mr. Gunaratne, the owner of Sirilanda Distillery, Kalutara, statedto me that either Mr. Wiekremasinghe or Mr. Seneviratne or bothcame to see him and asked him for a contribution towards a fundfrom which the four Councillors mentioned were to be paid. Mr.Gunaratne says that Messrs. Wiekremasinghe and Seneviratne (eitheror both) mentioned the names of the four Councillors and that hepaid Rs. 500. There is no doubt about this payment. The onlyquestion is what the conversation was. Messrs. Seneviratne andWiekremasinghe deny that they mentioned the four names in theexplicit manner deposed to by Mr. Gunaratne. After carefullyweighing up the evidence I feel that none of these witnesses is deli-berately stating an untruth. Mr. Gunaratne says that he was told byMessrs. Wiekremasinghe and Seneviratne that Mr. Batuwantudawe wasthe go-between between them and the other members. Mr. Seneviratnestates that he paid Rs. 2,000 to Mr. Batuwantudawe but that he paidno money to any of the other Councillors. It is common ground thatthere were informal conferences at which the distillers discussed variousmatters of importance to themselves. It appears that at these con-ferences the distillers sat in small groups for the purpose of informaldiscussion and that there was no meeting in the proper sense of thatword. Mr. Seneviratne says that the names of the other Councillorswere mentioned at these conferences as persons to whom Mr. Batu-wantudawe would probably have to pay something. But he saysthat there was no definite arrangement with Mr. Batuwantudawethat they should be so paid. Mr. Wiekremasinghe says that Mr. Sene-viratne told him that Rs. 2,000 was paid to Mr. Batuwantudaweand that Mr. Seneviratne undertook to obtain the votes of the fourCouncillors mentioned through Mr. Batuwantudawe. He also statesthat at the time it was common talk that these four members tookbribes. The clear impression which I have formed is that as a resultof the general talk that these four members took bribes their nameswere mentioned at conferences and discussions, that the manner ofapproach to them, if agreed upon at all, was not agreed upon with anydegree of precision but that the distillers believed that the money
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would reach them. I believe that Mr. Seneviratne is speaking thetruth when he says he paid Rs. 2,000 to Mr. Batuwantudaweand that it is also true that neither he nor Mr. Wiokremasinghe noranyone else paid any money direct to the other Councillors.
Dr. M. G. Perera, who gave evidence, was completely lacking infrankness and pretended that he knew very much less about thetransaction than he actually did.
Mr. C. M. Rodrigo, the other witness referred to above, was a clerkof Mr. Gunaratne and was able to speak only to the conferences andnot to anything that took place at them.
Mr. Siebel was merely an officer of a bank producing certain chequesbefore me.
April 3, 1943.E. M. D. de Silva.”
The Governor having received the Report caused the Report to beprinted as a Sessional Paper. The instructions given to the GovernmentPrinter were that it should not appear before the publication of a Govern-ment Gazette Extraordinary which was to contain a Bill.to be introducedinto the State Council connected with the Report. Those instructionswere carried out, and simultaneously with the publication of the Reporton 19 th May, 1943, there was published in the Gazette the text of a Billenabling the State Council to expel any member on the ground of theacceptance of a pecuniary reward or other gratification in connection withthe performance of his duties as a member.
Two hundred and twelve copies of the Report were published forcirculation, 250 for sale to the public and 20 for the Commissioner. The250 available to the public were quickly sold at the Public Record Office.Two hundred and twenty-five reprints were immediately asked for andthey became available on the 24th May. They, too, it appears, were alsoquickly sold.
The practice in Ceylon is that Government Sessional Papers are issuedfree of charge to the Press. That practice was followed in the presentcase, and the Sessional Paper was sent to The Ceylon Daily News amongother newspapers. In the office of The Ceylon Daily News the viewwas taken that the Report was a matter of public interest. Practically•the whole of the Report was published. Only those portions were omittedwhich in the opinion of the Associate Editor were not of public interestnr which had been sufficiently covered by other portions of the Reportwhich were published. The Commissioner was quoted verbatim,.Included in the matter published was the whole of para. 18 exactly as itappeared in the Report with an immaterial alteration in the heading, andthe whole of Appendix C except the first and the last two paragraphs.Some immaterial cross headings were inserted and two sentences(neither affecting the appellant) were printed in bold type.The publication of the Report began on the 18th May, 1943, and endedon the 25th May, 1943, paragraph 18 appearing on the 20th May andAppendix C on the 25th May. The newspaper did not make anycomments of its own.
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LORD UTHWATT—M. G. Perera v. A. V. Peiris.
The appellant forthwith instituted these proceedings.
At the trial there appears to have been some confusion on the issueof justification. Some observations by the appellant’s Counsel asrecorded in the Judge’s notes rather support the view that he admittedthe peccant statement to he true. No evidence was called directedto prove the truth of the statement. The District Judge, however,did not, in his judgment, rely on any admission of Counsel as to truth,and decided that, in the absence of evidence to the contrary, there wasa presumption that the findings of the Commissioner were true andcorrect. He accordingly held that what the respondents publishedwas true in substance and in fapt, but he took the view that thepublication by the respondents was not for the public benefit. In theSupreme Court, to which the appellant appealed, his Counsel did notquery the finding of the District Judge that the words were true insubstance and in fact and appears so far as the issue of justification isconcerned to have dealt only with the question whether the publicationwas for the public benefit. The Supreme Court answered this questionin the affirmative.
The Supreme Court were clearly entitled to determine the case onthe footing as to the truth of the statement conceded by the appellant’sCounsel at the hearing before them. But a determination of the matterat issue on the ground of justification is obviously not satisfactory,for the District Judge’s reasons for arriving at a decision that truthwas proved are plainly wrong, and the reasons for the concession madeby the appellant’s Counsel in the Supreme Court are not apparent.Their Lordships, having arrived at the conclusion that the respondentsare entitled to succeed on other grounds, do not propose to deal furtherwith the issue of justification. They will assume the statement asto the appellant’s conduct as a witness not to accord with the fact. Fan-comment does not therefore arise for consideration and the only questionis whether the publication was made on a privileged occasion, theabsence of express malice being conceded. On the question of privilegethe District Judge took the view that any privilege which might attach tothe publication of the Report in the newspaper did not extend to thematter published as regards the appellant, as it was foreign to the dutywhich the newspaper owed to the public. The Supreme Court held that. this publication was privileged.
Their Lordships will now turn to consider whether this view is or is notcorrect.
In Roman Dutch Law animus injuriandi is an essential element in pro-ceedings for defamation. Where the words used are defamatory of thecomplainant, the burden of negativing animus injuriandi rests upon thedefendant. The course of development of Roman Dutch Law in Ceylonhas, put broadly, been to recognise as defences those matters which underthe inapt name of privilege and the apt name of fair comment have in thecourse of the history of the common law come to be recognised asaffording defences to proceedings for defamation. But it must beemphasised that those defences or, more accurately, the principles whichunderlie them, find their technical setting in Roman Dutch Law as
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matters relevant to negativing animus injuriandi. In that setting:they are perhaps capable of a wider scope than that accorded to themby the common law. Decisions under the common law are indeed ofthe greatest value in exemplifying the principles but do not necessarilymark out rules under the Roman Dutch Daw. The “ gladsome lightof Roman jurisprudence ” once shone on the common law : repaymentto the successor of the Roman Law should not take the form of obscuringone of its leading principles.
Their Lordships’ attention has not been drawn to any case underthe Roman Dutch Law or the common law which exactly covers thepoint at issue. Both systems accord privilege to fair reports of judicialproceedings and of proceedings in the nature of judicial proceedingsand to fair reports of parliamentary proceedings, and much time mightbe spent in an inquiry whether the proceedings before the Commissionerfell within one or other of these categories. Their Lordships do notpropose to enter upon that inquiry. They prefer to relate theirconclusions to the wide general principle which underlies the defenceof privilege in all its aspects rather than to debate the question whetherthe case falls within some specific category.
The wide general principle was stated by their Lordships in Macintoshv. Dun1 to be the “ common convenience and welfare of society ” or “thegeneral interest of society ” and other statements to much the same effectare to be found in Stuart v. Bell2 and in earlier cases, most of which willbe found collected in Mr. Spencer Bower’s valuable work on ActionableDefamation. In the ease of reports of judicial and parliamentaryproceedings the basis of the privilege is not the circumstance that theproceedings reported are judicial or parliamentary—viewed as isolatedfacts—but that it is in the public interest that all such proceedingsshould be fairly reported. As regards reports of judicial proceedingsreference may be made to Bex v. Wright 3 where the basis of the privilegeis expressed to be “ the general advantage to the country in havingthese proceedings made public”, and to Davison v. Duncan4 wherethe phrase used is “the balance of public benefit from publicity ” ;while in Wason v. Walter5 the privilege accorded to fair reports ofparliamentary proceedings was put on the same basis as the privilegeaccorded to fair reports of judicial proceedings—the requirements ofthe public interest.
Reports of judicial and parliamentary proceedings and, it may be,of some bodies which are neither judicial nor parliamentary in character,stand in a class apart by reason that the nature of their activities istreated as conclusively establishing that the public interest is forwardedby publication of reports of their proceedings. As regards reports ofproceedings of other bodies, the status of those bodies taken alone isnot conclusive and it is necessary to consider the subject matter dealtwith in the particular report with which the Court is concerned. If
(1908) A. C. 390.(1891) 2 Q. B. 341.
* X. R. 4 O. B. 73
8 T. R. at p- 298.
E. and B. al -p. 231.
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it appears that it is to the public interest that the particular reportshould be published privilege will attach. If malice in the publicationis not present and the public interest is served by the publication, thepublication of the report must be taken for the purposes of RomanDutch Law as being in truth directed to serving that interest. Anirmisinjuriandi is negatived.
On a review of the facts their Lordships are of opinion that the publicinterest of Ceylon demanded that the contents of the Report should bewidely communicated to the public. The Report dealt with a gravematter affecting the public at large, viz., the integrity of members ofthe Executive Council of Ceylon, some of whom were found by theCommissioner improperly to have accepted gratifications. It containedthe reasoned conclusions of a Commissioner who, acting under statutoryauthority, had held an enquiry and based his conclusions on evidencewhich he had searched for and sifted. It had, before publication in thenewspaper, been presented to the Governor, printed as a Sessional Paperand made available to the public by the Governor contemporaneously witha Bill which was based on the Report and which was to be considered bythe Executive Council. The due administration of the affairs of Ceylonrequired that this Report in light of its origin, contents and relevance tothe conduct of the affairs- of Ceylon and the course of legislation shouldreceive the widest publicity.
As regards the newspaper the Report was sent to it by the authoritiesin the ordinary course. Nothing turns on any implied request to pub-lish—that would in their Lordships’ opinion be relevant only if malice werein issue. Their Lordships take the view that the respondents as respectspublication stand in no better and no worse position than any other per-son or body in Ceylon. A newspaper as such has in the matter underconsideration no special immunity. But it would be curious to hold thateither the editor or the proprietor of the newspaper was disqualified by thenature of his activities from having the"same interest in the public affairsof Ceylon as that proper to be possessed by the ordinary citizen. Intheir Lordships’ view the proprietor and editor of the newspaper and thepublic had a common interest in the contents of the Report and in itswide dissemination. The subject matter created that common interest.To this it may, perhaps irrelevantly in law, be added that the ordinarymember of the community of Ceylon would indeed conceive it to bepart of the duty of a public newspaper in the circumstances to furnishat least a proper account of the substance of the Report.
Taking that view of the facts of the case, and applying the generalprinciple their Lordships have stated, their Lordships are of the opinionthat the immunity afforded by privilege attached to the publicationby the respondents of this Report considered as a whole.
It remains to deal with two further matters. Eirst, it was arguedthat assuming that the Report was published by the defendants on aprivileged occasion the Report was divisible and that the statementrelating to the appellant’s conduct as a witness was not referable toany matter on which the privilege was founded. Malice, it will be
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101
recalled, was not alleged. Their Lordships cannot accept this contention.The main matter of public interest was the question of the extent towhich members of the Executive Council had accepted bribes, and,linked up with that, the value which might properly be attributed tothe Report as one which covered the whole ground. No just estimationof the general position as to bribery or as to the value of the Reportcould be formed without knowledge of the grounds on which theCommissioner stated he had acted and of the difficulties which theCommissioner stated he had encountered in coming to a conclusion,or in failing to come, on particular topics, to a definite conclusion.Their Lordships have recited the facts which bear on the lines on whichthe Report was framed. It is in their Lordships’ view clear that thestatement as to the appellant was germane and appropriate to theoccasion and does not fall to be distinguished in any degree from theother contents of the Report. Their Lordships would add that a viewcorresponding to that entertained by their Lordships here was expressedby Cockburn, C.J., in Cox v. Feeney x.
Second, it was argued that the publication of the matter complainedof was illegal in that it constituted a breach of section 6 (1) of the SpecialOrdinance and that therefore a defence based on privilege must fail.In their Lordships’ opinion the publication was not a breach of thatsection. On this point they agree with the view of the Supreme Courtas expressed by the learned Chief Justice when he said :—
“ In my opinion publication is not prohibited of the name, but ofc the name and the evidence or any part of the evidence ’. The nameand the evidence or any part of the evidence has not been published. ”
It is true that section 6 (2) and section 10 (6) both say :—
“ . . . of the name or of the evidence . . .
but this use of the disjunctive accords with the saving or qualifyingnature of these provisions and in no way conflicts with the conjunctiveform of the prohibition enacted by section 6 (1). Their Lordships cansee nothing in the other terms of the Ordinance to justify any modificationof the natural meaning of the words of that sub-seetion :—
“. . . . the name and the evidence or any part of theevidence …. ”
On the contrary it may well be said that the context points away froma disjunctive construction for section 6 (1) clearly relates only to evidencewhich is heard in camera and if, as section 5 contemplates, but part ofa witness’s evidence was so heard, that construction would have thestrange effect of forbidding the disclosure of the witness’s name whileallowing publication of part of his testimony.
In the circumstances their Lordships will humbly advise His Majestythat the appeal be dismissed. The appellant will pay the costs of theappeal. 1
1 4 F. and F, 13.
Appeal dismissed.