016-NLR-NLR-V-58-N.-H.-KEERTHIRATNE-Acting-Minister-of-Posts-and-BroadcastingPetitioner-and-.pdf
195G Present : K. D. de Silva, J., and H. N. G. Fernando, J.
1ST. IT. KEERTHIRATNE (Acting Minister of Posts and Broad-casting), Petitioner, and M. M. P. GUXAVv'ARDKXE el al..
Respondents
.S'. C. 5S7—Application in Revision in D. C. Colombo, 31.$53/31
■ Evidence-—Communication- made to public officer in ojficial confidence—Privilege—
Applicability of English law—Evidence Ordinance. s*. 100, 123, 124, 126,.
1G2 (2).
Sections 123 and 12-1 of (he Evidence Ordinance do not correspond with the-English law on the same subject, and the general principle by which the EnglishCourts are guided is not applicable to cases falling under section 124.
When a public office r objects to the production of a document on the groundthat it is a communication made in official confidence, the Court has jurisdictionunder section 121, read with section 1G2 (2), of the Evidence Ordinance toinspect the document and admit it in evidence if it is of opinion that the com-munication was not made in official confidence. The expression " communi-cation made in official confidence ” would include not merely inter-olficialcorrespondence but also correspondence by members of the public with publicofficials. The more mark " confidential ” placed on a document by theindividual who writes it docs not convert the document into a communicationmade ill official confidence.
Obiter: If a. Court agrees that the communication was made in officialconfidence, it can determine by inspection whether the production of thecommunication would or would not be prejudicial to tlic public interest.
A PPLrTCATIOX for the revision of an order of the District Court-Colombo.
In this action for defamation instituted by a former officer of thePosts and Telegraph Department against two persons who had preferreda petition to the Minister of Posts and Broadcasting, the Minister, uponbeing summoned by Court- to produce the original of the petition, took
objection to the production on the ground that the petition was a. state-ment made to him in official confidence and that” the public interestwould suffer by the disclosure of its contents.
E. F. N. Graliaen, Q.C., Attorney-General, with JI. Tiruchclvani,Deputy Solicitor-General, and J. T!' Subasinghe, Crown Counsel, for thepetitioner. '
Walter Jayawardcnc, with Neville Wijeralne, for the plaintiffs-respondents.
Cur. adv. vult.
August 21, IfioG. Jf. X. G. 1''kh..axi)o, J.—
This was an application for the revision of an order of the AdditionalDistrict Judge of Colombo, directing the Ministry of Posts and Broad-casting to produce the original of a petition sent to the Minister by twoprivate individuals. The order in question was made by. the learnedDistrict Judge in an action for defamation instituted by a former officerof the Posts and Telegraph Department against the two persons who hadpreferred the petition to the Minister. Upon being summoned to producethe document the Minister filed an affidavit averring that the petitionwas a statement made to the Minister in official confidence and that thepublic interest would suffer by the disclosure of its contents ; objectionto production was taken on the ground of privilege. The basis uponwhich this Court is now asked, in revision, to set aside the order of theDistrict Judge is thus set out in the petition in revision :—
“ (a) The said order is contrary fo law.
The learned Judge erred in holding that the said petition was notmade in official confidence and was not a privileged document. Anaffidavit from a Minister of the Crown in Ceylon that a particularcommunication is privileged and cannot therefore be produced asevidence in a Court of Daw is conclusive.
The learned Judge has misdirected himself in holding that acommunication can only be made in official confidence if it is madebyr one official to another.
The Law of Ceylon on this matter is identical with English
Law.
The language of paragraph (6) above and flic argument of the learnedAttorney-General make it clear that the main ground of objection isthat the ease is one covered by section 124 of the Evidence Ordinance :—
“ No public officer shall be compelled to disclose communicationsmade to him in official confidence when he considers that the publicinterests would suffer by the disclosure
-64IVEHISTAXXJO, J.—Keerlhiratne r. GunawarrJenc
——— -:- c1
it was argued that under the prevailing Knglish'Law a claim of privilegemade in the form and manner as in the prese'nt'cS'se would be upheld bythe Courts without question, that the Ceylon Evidence Ordinance wasintended to be a- statutory incorporation of the corresponding EnglishLaw, and that in the construction of section 124 our Courts would regardit as the intention of the Legislature that documents of the nature referredto in section 124 should be privileged from product ion in the same mannerand to the same extent as such documents would be protected in England.The Attorney-General relied on section 100 of the Evidence Ordinance,not, iff understood him aright, for the juirpose of contending that withregard to the subject- of State privilege there, is any casus omissus justi-fying resort to English Law, but rather with a view to reinforcing theargument that sections 123, 124 and 125 of our Evidence Ordinanceshould be construed as representing in statutory form the correspondingEnglish Law.
While I would respectful^' concur with the view adopted by six of theseven Judges who constituted the Bench of the Court- of Criminal Appealin The King v. James Chanderesekera 1 to the effect that we should shutour eyes to the English Law of Evidence except in so far as a casus omissusrenders recourse to it necessary, I do not think that those observationscan be seriously opposed to the general argument presented by theAttorney-General in the present ease. If it is clear that- any particularprovision or group of provisions in our Ordinance represent in statutoryform principles which were well settled and recognised in England beforethe enactment of our Ordinance, then our Courts would rightly look forassistance to cases in which those principles have been applied by theEnglish Courts. In my opinion therefore it is necessary in the presentcase first to consider whether the Legislature in Ceylon clearly intendedto introduce the then prevailing English principles into our Ordinance.If such was their intention I should have little hesitation in relying uponEnglish precedent.
The relevant sections of our Ordinance which provide for the exclusionof official matters from evidence, place- the matters in question in three-different groups :—Firstly, there is an absolute prohibition (section 123)against the production of unpublished official records relating to Affairs ofState except with the permission of the appropriate executive authority.Secondly, a public officer has the right to withhold from evidence com-munications made in official confidence when lie considers that the publicinterests would suffer by the disclosure (section 124). Thirdly, certain“ law enforcement officers ” have the right to withhold the source ofinformation as to the commission of offences (section 125).
In England there appears to be no corresponding statutory provision,but questions of a similar kind are determined by the Common Law,under which the exclusion of evidence of the nature with which wc areconcerned is founded on grounds of public policy. The third group of-matters to which I have referred forms a separate head under the English
[101-2) 44 -V. £. It. 0~.
Common Law ; but there appears not to be in England any clear distinc-tion between matters, falling respectively within the scope of oursections 123 and 124. All these matters arc dealt with in the Englishauthorities under the head of “ Affairs of State ”. The principle asstated by Phipson 1 is that “ Witnesses may not be asked, and will notbe allowed, to state facts or to produce documents,, the disclosure ofwhich M ould be prejudicial to the public service. And this exclusion isnot confined to official communications or documents, but extends to allothers likely to prejudice the public interests ".
The procedure by which effect is given to this principle has beenauthoritatively determined. Once a Minister of the Crown objects to theproduction of a document on the ground of prejudice to the publicinterest the Court will not require production :—per Viscount Simon L. C.
•'* the question, whether the production of the documents would beinjurious to the public service must be determined, not by the judge,but by the head of the department having the custody of the paper;and if he is in attendance ancl states that in his opinion the productionof the document would be injurious to the public service, we think thejudge ought not to compel the production of it1’. (Duncan v. Cammel- Laird and Co. 2) Although that decision applies directly in relation todocuments, it would seem also that the principle will operate in the sameway where the Crown desires to withhold or to prevent the admission oforal evidence, the admission of which is likely to prejudice the publicinterest. Although the English Courts have expressed strong viewsas to the circumstances and the manner in which the objection of Crownprivilege should be taken, it apparently is now quite clear that, once theobjection is taken by the proper authority and upon grounds properlystated, the Courts will necessarily uphold the objection.
The House of Lords in the Cammel Laird Case (supra) expressly dis-sented from the decision of the Privy Council in Jlobinson v. Slate ofSouth Australia 3 where it was held that the Courts in Australia had thepower to inspect documents in order to determine whether their pro-duction woidd be detrimental to public welfare. That decision wasfounded on a rule of Court in the following terms :—“ Where oh an appli-cation for an order of inspection privilege is claimed for an}' document,itshall be lawful for the court or a judge to inspect the document for thopurpose of deciding as to the validity of the claim of privilege ”. Butalthough a rule in the same terms obtains for the English. Supreme Court,the House of Lords considered that the rule was intended only for thoprotection of the litigant and had no application to a case where objec-tion to production is taken on the ground of prejudice to the interestsof the State.
The law as stated in our Ordinance docs not in my opinion cox'respondexactly- to the English Law. In the first place the Ordinance draws a,distinction between “ unpublished official records ” and “ communica-tions made in official confidence ”. In the case of the former, section123 assumes that production may be prejudicial to the public interests-
1 Phipson, Law of Evidence, 0th Edition, p. 10G.* 1042 .4. G. at p. C-ZO.
3 JO31 A. C. 701.■
and therefore prohibits production, except with the requisite permission,and the same prohibition applies with respect to oral evidence derivedfrom such official records. Of course a Judge would rarely be able todecide of his own motion whether a particular official record is an“ unpublished ” one ; accordingly I take it that the appropriate-procedure in a case where there is an attempt to produce some suchrecord or evidence derived therefrom would be the same as that whichobtains in England, namely that a Minister of the Crown would certifythe document to be one protected by the section. Although it isunnecessary for me to decide whether or not such a certificate wouldhave the same conclusive effect as in England, a consideration of thataspect of the matter is helpful for the present purpose.
Sub-section (2) of section 162 of our Ordinance provides “ that theCourt if it sees fit may inspect the document, unless it. refers to matters ofStale ”. The terms of this sub-section appear to indicate that inrelation to “ unpublished official records relating to affairs of state ”,that is to say in cases covered by section 123, the Courts are denied theright of inspection if objection to production is duly taken on behalf ofthe Crown. Indeed it would seem that in regard to such cases the viewas to eonclusiveness expiessed by the House of Lords in the Cam.me.1Laird judgment is clearly incorporated in the terms of section 162 (2).
I do not think, however, that the Ceylon law is the same with respectto the efise of “ communications made in official confidence ”. Whereasin England it may be open to a Minister to plead the objection of publicpolicy in his discretion with respect to any matter falling within thegeneral category of an “affair of state ”, and thus to withhold evidenceof any communication made to a public officer, the same absolute privi-lege would in Ceylon extend only to unpublished official records andnot necessarily to every communication made to a public officer. Mattersof the latter class are dealt with in a different manner in section 124of the Evidence Ordinance. In my opinion, if objection to productionis taken 'under section 124 (and not in the terms set out in section 123) twomatters arise for determination, firstly, whether the communication wasmade in official confidence and secondly, whether its disclosure wouldplace the public interest in jeopardy. In considering those mattersregard must I think be had to the provisions of section 162. The onlyexception to the power of inspection .which is conferred by those pro-visions is for the case of a document- which refers to matters of State.Since the Legislature has made separate provision (in section 123 and124 respectively) for two "groups of matters which are covered in Englandby the one general principle of public policy, it is in my opinion unsafe toignore the distinction between matters of State referred to in section 123and other communications which are dealt with in section 124. Theexception for “ matters of State ” provided for in section 162 (2) shouldtherefore be restricted to cases falling under section 123 where a similarexpression' occurs. But where it is alleged that some communciation wasmade to a public officer in official confidence, there seexn.s to be no reasonwhy effect cannot be given to the plain terms of section 162 which confer
on the Court a right of inspection in order to determine the question ofadmissibility. The right of inspection so conferred would in my opinionbe quite without meaning unless the Legislature also intended that theCourt will have jurisdiction to decide the first question to which I havereferred, namely whether the communication was made ** in officialconfidence”. In the present case the District Judge has inspected thedocument and found that the communication in question was not madein official confidence. The Attorney-General has conceded that themere mark “ confidential ” placed on a document by the individualwho writes it does not convert the document into a communica-tion made in official confidence ; and in the circumstances in which thedocument now in question appears to have been written and transmittedto the Minister, I cannot see how the correctness of the finding of thelearned Judge can bo questioned once it is held that lie had thejurisdiction to reach that finding.
The second question for determination in a ease alleged to fall undersection 124 could only arise if a Court first agrees that the communicationwas made in official confidence. If and when this question has to beconsidered, it seems to me that the decision in the Australian case willprobably have to be followed, not only because it is a decision of thehighest judicial authority, but also because section 162 implies that theGourt can determine by inspection whether the production of the parti-cular communication would or would not be prejudicial to the publicinterest.
complaint or criticism concerning a public official can be reasonablyregarded as having been made “ in order to enable Government decisionsto be taken on the-best- advice and on the fullest informationPhipson
sets out a comprehensive list of English cases in -which evidence wasexcluded of matters held to fail under the head of “ Affairs of StateFor present purposes it is sufficient, without special reference to anyof these cases, merely to observe that in very nearly all of them thedocuments or statements for which privilege was claimed were in the-strict sense of the term “ State documents ”, i.e., communications between-officials, and that there appears to have been no single case in Englandin which privilege was successfully claimed for a communication froman individual containing allegations of the nature alleged to have been,made in the petition which the learned District Judge admitted in thpresent case.
The application must be refused with costs fixed at Es. 262-50.
K. D. ue Silva. J.—I agre e.
Application refusal.-