104-NLR-NLR-V-57-THE-ATTONEY-GENERAL-Applicant-and-1-E.-P.-SAMARAKKODY-Member-of-Parliamen.pdf
Present : H. N. G. Fernando, J.
1955
THE ATTORNEY-GEYER-AR, Applicant-, and (L) E. 1 SAMARAK-XOHY (Member of Parliament for Dehiowita), (2) XV. UAIIANAYAKE(Member of Parliament for Galle), Respondents
S. C. 439—In the mailer of an Application by the. Attorney-General underSection 23 (1) of the Parliament (Powers and Privileges) .
Act, No. 21 of 1953
Parliament—OJfencc of breach of privilege—-Disrespectful conduct in the precincts ofthe House—Immunity of Members—Meaning and scope of expression “ Pro-ceedings in Parliament ”•—Jurisdiction of Supreme Court—Suspension ofsitting of House—Condition of time limit—Ceylon Constitution Order in Council,1016, s. 17 (5)—Parliament (Powers and Privileges) Act, Ko.- 21 of 1063, ss.3, 1, 0, 22, 23, 25, 26..
The two respondent s were members of the House of Represent at ires. Ata sitting of the Houso another member, X, on being suspended from tho serviceof tho Houso, refused to leave tho House when ho was ordered by the Speakerto do so. Tho Speaker thereupon ordered tho Sergeant at Arms to removotho member from the House, stated “I suspend tho sitting of tho Houso”,
. and vacated tho Chair. Tho mn.ee remained on the Speaker’s table. Thereafter,and beforo tho Sergeant’at Arms removed X with Police assistance obtainedupon an order from tho Speaker in Chambers, the 2nd respondent proposedthat 1110 1st respondent do lako tho Chair, and another member seconded thatmotion. Tho Deputy Speaker anil tho Deputy Chairman of Committees werenot in tho Chamber when tho motion was moved. As no objection was takento tho motion, tho 1st respondent took the Chair. Thereafter X made a speecliin tho Chamber and continued to speak until tho Sergeant at Arms entered withtho Polico and removed X from the Chamber. On the entry of the Sergeantat Arms with Police officers, the 1st respondent vacated tho Chair.
The Attorney-General alleged inter alia in the present application madeunder section 23 of tho Parliament (Powers and Privileges) Act that the 1strespondent was guilty of disrespectful conduct in the precincts of tho Houso(au offence specified in paragraph 7 of Part B of the Schedule to the-Act) andthat tho 2nd respondent was guilty of abetment of tho said offence of disrespect-ful conduct (an offence specified in paragraph 10 of Part 13).
.. Assuming (without deciding) that the sitting of tho Houso was validly sus-
pcndoct by the Speaker and that there was no occasion for the operation of- 6cction 17 (o) of tho Ceylon Constitution Order in Council, 1046, wliicli providesthat in the absenco of tho Speaker, tho Deputy Speaker and tho Deputy Chair-man of Committees, at a sitting of the House-, n member proposed and secondedin that behalf may preside at tho sitting—
Held, that tho conduct of the two respondents, even if it was disrespectful,was not justiciable by tho Supremo Court. Xt was conduct included withinthe scope of sections 3 and 4 of the Parliament (Powers and Privileges) Actand could not therefore bo questioned or impeached in proeet rings taken inthe Supremo Court under section 23 of tho Act. The jurisdiction to take cog-nisance of such conduct was exclusively vested in the Ht jse of Representatives..
Quaere, (i) whether the provisions of section 25 {2) of tho Parliament (Powersand Privileges) Act preclude o respondent fron. challenging tho validity of anapplication mado under section 23 on the giound that the application includescharges not specified in tho Report furnished by the Attorney-General undersection 2G.
whether, on every occasion ot the suspension of p sitting of the Houseof Representatives, it is tho duty of the Speaker to give notice of the timewhen the sitting will be resumed.
whether paragraph 7 of Part B of the Schedule to the Parliament (rowersand Privileges) Act covers only disrespectful conduct in the precincts of theHouse, and not such conduct in tho House itself or in a Committee.
P PLICATION under section 23 (1) of the Parliament- (Powers and
Privileges) Act.
T.S. Fernando, Q.C., Acting Attorney-General, with H. A. Wijemanne,Acting Deputy Solicitor-General. V. S. A. Pullenayegum, Crown Counsel,and T. F. B. Wikramanayake, Cromi Counsel, for the Crown.
Colvin B. de Silva, with Waller Jayaicardene, and T. IV. Rajuratnam,for the 1st respondent.
S. Xadesan, Q.C., with Waller Jayaicardene, J. Senathirajah and
S. P. Dahanayake, for the 2nd respondent.
At the commencement of the hearing, Counsel for the respondentssubmitted that they were objecting to charges (3) to (6) in the Appli-cation being entertained by the Court as these charges had not beenincluded in the report of the Attorney-General to the Speaker underSection 26 (6) of the Parliament (Powers and Privileges) Act Ko. 21of 1053.
The Attorney-General submitted that- it- was not- competent for theCourt- to entertain the- respondents’ preliminary objection in view ofthe provisions of Section 25 (2) of the Parliament (Powers andPrivileges) Act- Xo. 21 of 1953..
The Court intimated that it would first hear the Attorney-General'ssubmission.
T. S. Fernando, Q.C., Acting Attorney-General.*—-Section 2o (2) ofthe Parliament (Powers and Privileges) Act Xo. 21 of 1953’ enacts that“ the making of an Application under Section 23 by the Attorney- .General in any case shall constitute conclusive evidence that the Appli-cation has been duly made in accordance with the preceding provisionsof this Section. ” .It is therefore not competent for the Court to gobehind the Attorney-General's Application to determine whether theApplication has been duly made. Similar provisions in various statutes
have been consistently interpreted, by the Courts in this'manner, videThe Queen v. Levi 1 (Bankruptcy Act) ; Gales v. Turguand – (CompaniesAct) : Ex parte Learoyd in re Foulds 3 (Bankruptcy Act) ; Ladies Dress. Association Ltd. v. Pulbrooh 4 (Companies Act) ; Kerr v. John Merit ram 5(Companies Act) ; Bex v. Agricultural Land Tribunal (South Easternarea) Ex parte Hooher 8 (Agriculture Act).
Colvin B. de Silva, in reply, cited In re National Debenture and AssetsCorporation 7 and Attorney-General v. Mayor of Bournemouth s.
Colvin B. de Silva, showing cause on behalf of the 1st respondent,submitted that the conduct of the respondents was not disrespectfulas they were acting in terms of Section 17 (5) of the Ceylon ConstitutionOrder in Council which provided that in the absence of the Speaker.Deputy Speaker, and Deputy Chairman of Committees at a sitting, amember who is proposed and seconded in that behalf may preside atthe sitting. The House had not been validly suspended as no time hadbeen named by the Speaker—vide Standing Order SO.
The respondents were members of the House and Sections 3 and 4of the Parliament (Powers and Privileges) Act, Ho. 21 of 1953, conferredimmunity upon them in respect of their conduct in the House.
S.Nade-san, Q.C., for the 2nd respondent, adopted the argumentsof Counsel for the 1st respondent and further submitted thatif the 2nd respondent bona fide formed the view that there was no validsuspension, his subsequent conduct docs not become justiciable merelybecause the suspension is subsequently held by the Court to be valid.
T.S. Fernando, Q.C., Acting Attorney-General, in reply.—Theimmunity conferred by Sections 3 and 4 of the Parliament (Powers andPrivileges) Act, Xo. 21 of 1953, upon the members of the House was onlyin respec t of Proceedings in the House ’'.
t; What is done or said by an individual member becomes entitled
to protection when it forms part of the proceedings of the House in
its technical sense, i.e. the formal transaction of business with the
Speaker in the Chair or in a properly constituted committee. {'.May's
Parliamentary Practice, 15th. Edition, page G3).
Tn this case, the Speaker having suspended the sitting there couldbe no valid transaction of Parliamentary business. Xo immunity there-fore attaches to the members in respect of things said or done duringsuc-h suspension.
As to the meaning of the term “ proceedings in Parliament ” videMay's Parliamentary Practice, 15th Edition, pages G1 to GG, and Bivlinv. Bilainlin ?..
. There w;ts a valid suspension of the House although no time wasspecifically named. The purpose of naming a time is to give notice to the
'1 USG-5) TAJ. M. C.174'5 (19JO) Ch. 657 at GCO.
– (1S67) 2 IT. L. 325 at 354.* (1052) 1 Q. B. 1 Dili. Ct.
5 (ISIS) 10 Ch. D. 3. .' {1S01) 2 Ch. 50 5.
3 (1053) 1 Q. Ji. 4S-5.
1 (1000) 2 Q.Tt. 370.s (1002) 2 Ch. 714.
members as to when they should again re-assemble to continue thetransaction of parliamentary business. Tn this case, having regard tothe circumstances which immediately preceded the suspension, it wouldhave been obvious to' any reasonably intelligent member of the Housethat the Speaker intended to resume the transaction of parliamentari-business when the member for Moratuwa who had been “ named ” bythe Speaker had been removed from the House. .
The inference is irresistible that the conduct of the respondentsconstituted a deliberate defiance of the authority of the Speaker.
Cur. ado. vult.
December 2, 1955. H. N. G. Ferxando, J.—
In this case of first instance under the Parliament (Powers and Pri-vileges) Act, No. 21 of 1953, the Attorney-General made an applicationfor notices on two members of the House of Representatives callingon them to show cause why they should not be punished for offencesof breach of privilege of Parliament. Being satisfied (in terms of therelevant section) on perusal of the application and of the evidence onaffidavit furnished therewith that the members appeared to have com-mitted the offences in question, I caused notices to show cause to beserved on them returnable on October 14, 1955. My attention wasthereafter drawn to certain defects in the form of the notices, and,although counsel for the respondents did not propose to rely on thosedefects, fresh notices were served on that day returnable on November 51,1955, being also the day fixed for the inquiry.
I propose first to refer to the manner in which jurisdiction lias beenconferred on this Court to entertain proceedings for breaches of privilegeof Parliament. ..- .
Section 22 (sub-sections (1) and (2) ) of the Act declares each of theacts and omissions specified in both Parts of the Schedule to the Actto be a breach of the privileges of Parliament and to be an offence punish-able by the Supreme Court under the provisions “ hereinafter containedin that behalf”. Sub-section (3) of the same section declares everybreach of privilege specified in Part B of the Schedule to be an offencepunishable by the appropriate House of Parliament. It will be seentherefore that the offences in Part A are punishable exclusively by theSupreme Court-, while both this Court and the Houses have a concurrentjurisdiction over the offences specified in Part B. A comparison ofPart A and Part B of the Schedule indicates that the latter includes
what may be called contempts of the authority of Parliament, suchas the refusal to obey orders or resolutions under the Act, the refusal toproduce documents or to give evidence and prevarication or other mis-conduct on the part of any witness, (6) assaults, insults or obstructionof members or officers of Parliament committed in any House or withini ts precincts, and (c) disturbances likely to interrupt proceedings of Parlia-ment and disrespectful conduct within the precincts of either House.Part A on the other hand deals, generaffy speaking, with acts or omissionscommitted outside Parliament, such as assault, insult – or obstruction
of members coming to or going from either House, compulsion or induce-ment of members by force, threats or bribes, and the publication offalse or perverted accounts of Parliamentary proceedings or of defamatory-statements reflecting cither on the proceedings or character of eithcrHouse or on the conduct of members.
It '■would appear from this comparison that Parliament has thought-fit to reserve for each House only the right- to deal with misbehaviourin either Chamber or its precincts and conduct which interferes with thetransaction of Parliamentary business. It must be noted also that evenin these cases, the only punishment which cither House may inflict isadmonition or removal from the precincts of the House as well as suspensionfor one month in the case of a member (section 2S). On the other handthe Supreme Court has power in the case of any offence to impose asentence of imprisonment for not more than two years, or a fine not-exceeding Its. 5,000 or both imprisonment and fine.
The jurisdiction of the Supreme Court is created by section 22 of theAct, but is not exercisable except upon an application by the Attorney-General made in pursuance of an express resolution of the House con-cerned. The mode in which the Attorney-General is moved to makethe appropriate application is prescribed in sections 26 and 25 of the Act.Section 26 (1) provides that the Speaker may refer to the Attorney-General for report any case of an alleged offence under Part II, thereference being made by the Speaker either upon a complaint made tohim in Chambers by a member or upon a resolution of the House. Sub-section (2) of the same section provides for the recording of the statement-of a member making a complaint and of other relevant statements whichare transmitted to the Attorney-General at the time of the reference.Sub-section (6) requires the Attorney-General to rejiort to the Speakerwhether there is in his opinion sufficient evidence “ to warrant the takingof further steps under this Act in respect of an alleged offence under thisPart ",
Section 25 then provides that an application to the Court for the issueof a notice to show cause under section 23 may be made by the Attorney-General, only if he has furnished a report that there is sufficient evidenceto warrant the further taking of steps under the Act and if the Houseafter consideration of the report has by resolution required the Attorney-General to make the application. Section 23 provides for the makingof the application to this Court bv the Attorney-General, the issue ofnotice to show cause and the punishment in ca.sc no cause or no sufficientcause is shown.
It is convenient at this stage to summarize the facts which give riseto tiie present application.
At the sitting of the House of llcprescntatives on April 6, 1055,
the Speaker named ” the member for Morafuwa, and in terms
of Standing Older S2 the House thereupon passed a motion
of the Leader that the member for Horatuwa be suspended
from the service of the House.
On being thereafter ordered by' the Speaker to leave the House
the member for Moratuwa refused to comply with the order.
The Speaker thereupon ordered the Serjeant at Anns to removethe member from the House, stated “ I suspend the sitting-of the House ”, and vacated the Chair. Tire mace remained
on the Speaker’s table. ■
<iv) Thereafter, and before the Serjeant at Arms removed the member• for Moratuwa with Police assistance obtained upon an orderfrom the Speaker in Chambers, the 2nd respondent, the memberfor Galle, proposed that the 1st respondent, the member forDehiowita, do take the Chair, and tire member for Ivotteseconded that motion._
<v) The Deputy Speaker and the Deputy Chairman of Committees" were not in the Chamber when tire motion was moved.
<vi) There being no objection taken to the motion, the 1st respondenttook the Chair.
(vii) Thereafter the member for Moratuwa made a speech in theChamber and continued to speak until the Serjeant at Armsentered with tire Police and removed that 'member from theChamber.
•(viii) On the entry of the Serjeant at Arms with Police officers, the1st respondent vacated the Chair.
The Attorney-General alleges in his application that the 1st respondentis guilty of disrespectful conduct in tire precincts of the House (an offencespecified in paragraph 7 of Part B of the Schedule to the Act) and thattire 2nd respondent is guilty of abetment of the said offence of disres-pectful conduct (an offence specified in paragraph 10 of Part 13). Healso alleges that the 1st respondent is guilty of creating a disturbancein the Chamber while the House was sitting knowing or having reasonablegrounds to believe that the proceedings of the said House were or werelikely to be interrupted (an offence set out in paragraph 6 of Part B)and that the 2nd respondent was guilty of abetment of that offence ;and lastly that the 1st respondent is guilty of the offence of joining insuch a disturbance created by the member for Moratuwa (also an offencespecified in paragraph. 6 of Part B) and that the 2nd respondent wasguilty of abetment of the latter offence.
The affidavits filed by the respondents contain averments that thereport furnished by the Attorney-General under section 26 of the Actonly stated that there was in the opinion of the Attorney-General suffi-cient evidence to warrant the taking of further steps in respect of theoffence of disrespectful conduct specified in paragraph 7 of Part B of theSchedule and that there was no report from the Attorney-General inrespect of any other offence nqr any resolution passed by the Houserequiring him to make an application in respect of any other offence.Counsel for the 1st respondent has raised two preliminary objectionsbased on these allegations of the respondents :—•
(a) That the Attorney-General had no power to make an applicationto this Court iii respect'of tiny offence other than the offencereferred to in his report, namely, disrespectful conduct in the
precincts of the House ; and that therefore the Court had nojurisdiction to call upon the respondents to show cause inrespect of the other alleged offences referred to in paragraphs-
to (vi) of the Attorney-General’s application ; and{b) That the application being invalid upon the ground already stated,the invalidity affects the entirety of the application and thatthe Court lias therefore no jurisdiction to entertain even thecharge of disrespectful conduct which was in fact specified.in the report of the At torney-General.
The Attorney-General has raised a counter objection to the right ofthe Court to entertain these objections as to the validity of his appli-cation. He relies on the following provision in section 25 (2) of the Act :—
The making of an application under section 23 by the Attorney-General in any case shall constitute conclusive evidence that theapplication has been duly made in accordance with the precedingprovisions of this section
Upon the authority of several cases in which, the expression “ conclusiveevidence ” has been interpreted by the English Courts, the Attorney-General has argued that this Court is bound to assume that all the condi-tions antecedent to the making of a due application have been compliedwith, and that his Report to the House or the Resolution of the Housecannot be utilised to displace that assumption.
At a later stage of the argument, counsel for the .1 st respondent concededthat the application of the Attorney-General, in so far as it alleged thecommission of the offences of disrespectful conduct and abetment thereof,was duly made, and that he could properly take objection only to theother charges, namely those numbered (iii) to (vi) in the application.All the charges being based on the same acts of the respondents, it-appeared to me that the Court could not reach a finding against eicherof the respondents on charges (iii) to (vi! without also finding againstthem on those of disrespect fid conduct, and that any additional findingon any of the last four charges would make no difference to the measureof punishment. The Attorney-General therefore agreed to my suggestionthat the charges (iii) to (vi) be regarded as withdrawn. In these circum-stances I am not called upon to give a ruling upon the first preliminaryobjection to the application which has been taken on behalf of the res-pondents. I need only make the observation that since the Attorney-General's Department will now be aware of the nature and scope of theobjections which can he formulated against the inclusion in an' appli-cation under section 23 of the Act of charges not specified in the Report-under section 20, it is unlikely that iii any future case a respondent tosuch an application will have occasion to raise such objections.
The secoiid preliminary objection not being maintainable, the first-two charges set out in the Attorney-General's application now requireconsideration.
The charge against the 1st respondent of disrespectful conduct withinthe precincts of the House is based on only one allegation of fact, namely
tliat he took the Chair of the Hpuse on the occasion referred to in theapplication ; and the charge of abetment against the 2nd respondent isagain based oh one allegation of fact, namely that he moved the motionthat the 1st respondent do take the Chair. The conduct of the res-pondents would not necessarily or'even ordinarily be improper, forsection 17 (5) of the Ceylon Constitution Order in Council, 19I(i, providesthat in the absence of the Speaker, the Deputy Speaker and the DeputyChairman of Committees at a sitting of the House, a member proposedand seconded in that behalf may preside at the sitting. The argumentof the Attorney-General was however that, the sitting of• the Househaving been suspended by the Speaker, no business could be transactedin the House until the sitting was again resumed after the period of sus-pension. It was accordingly his argument that when a sitting issuspended there would be no occasion for the operation of section 17 (5)of the Constitution. But, argued counsel for the respondents :—
(o)the act of the Speaker on April 6, 1955, namely his statement“ And I suspend the sitting of the House ”, and his vacationof the Chair, did not in law constitute a suspension of thesitting; and alternatively.–
assuming that there was a valid suspension, the conduct of thetwo respondents, even if it constituted disrespectful conductis not justiciable by this Court.•■
The first of the two arguments just mentioned is based on the omissionof the Speaker to specify the period of the suspension of the sitting.Although the only provision in the Standing Orders of the House whichrefer to a suspension is Standing Older S6 :—
“In case of grave disorder arising in the House Mr. Speaker may,if he thinks it necessary to do so, adjourn the House without questionput or suspend the sitting for a time to be named by him ”,
.the Clerk of the House has stated in an affidavit that “ It is the practiceof the House of Representatives for the Speaker to suspend sittings, ofthe House as occasipn demands without a resolution by the House ” ;and it is conceded that according tp the practice of the House sittingsare occasionally suspended by the Speaker in circumstances other thanthose contemplated in Standing Order S6. But the Attorney-Generaldoes not contest the position that on every occasion of a suspensionfor whatever cause, it is customary for the Speaker to give noticp tomembers of the time when the sitting will be resumed. It is "apparentthat such notice is necessary, for without it members would not knowwhen they should return to the House for attendance at the' resumedproceedings. . I will assume for . the purpo^s of this argument'that thespecification of a named time would not be the only means of givingnotice, and that it would suffice for the' Speaker ltd s’u%end the sittmgfor a' named period or until the happening of a specified event.” 1. ‘ 'K
… It is. apparently .not unusual in .the .House of .Cpmrnpns for the. House.to, be suspended .without a time for theResumption.-being named. AFor
instance on August 4th, 1019 there was a suspension the nature of whichwas made known to the House in the following remarks :—
Sir Donald jtaclean : " In view of the general desire of the Houseto view the River Pageant this afternoon, may I respectfully ask you,Sir, whether you have any suggestion to make to the House to meetthat desire ?
Mr. Speaker : The House will, no doubt, be desirous of doing whatit can to salute the representatives of the Mercantile Marine as theypass. Probably it will be best if I quite informally suspend the sittingof the House for a reasonable interval. When I resume the Chair Ishall have the bells rung, so that lion. Members may be aware of thefact ”.
Again on 17th September, 1940, Mr. Speaker suspended a sitting in thefollowing terms :—
“ j' jvm informed that an air raid is now considered to be imminentand I will accordingly suspend the sitting ”.
There follows a statement in Hansard that the House resumed after aninterval of 22 minutes. Subsequently a special Standing Order waspassed to the effect that the Speaker would suspend a sitting on beinginformed of the imminence of an air raid and that in that event the Housewould resume after the t: danger past ” signal was received.
The Attorney-General argues that in the context of the events of April(3th, 1955, the Speaker did (though, not in so many words) give noticeto the House that the sitting would bo suspended until the member forMoratuwa had been removed from the Chamber and that every membershould have been and was in fact'aware that the suspension was beingordered with a view to resumption after the removal of the member forMoratuwa. If of course the Speaker had made the statement “ I suspendthe sitting until the member for Moratuwa is removed from the House ”or even ‘ 1 suspend the sitting in order that the member for Moratuwabe removed from the House ”, there would have been a clear and adequateindication that the House woidd resume forthwith after the removalof the member for Moratuwa, and that indication would in my opinionhave been substantial and effective (though not literal) compliancewith the requirement- that a time should be named. But it is arguedfor the respondents that the mere knowledge that the sitting was sus-pended consequent upon a disturbance created by the member forMoratuwa was not sufficient- to fix members with the knowledge that,proceedings would be resumed after the removal of the cause of thedisturbance. It was argued also that the question whether there was avalid suspension is one of law and the omission of the Speaker to namea time rendered his purported suspension ineffective. There is I thinksomething to be said for the view that if the Speaker, who is the represen-tative of the House, failed duly to give effect to his intention to suspendmembers would be entitled to take advantage of his omission and toproceed with business despite his defective expression of intention.But in view of the opinion which I.have formed on the second point-relied upon by the respondents, namely that their conduct on thisoccasion is not justiciable by this Court,- I can assume (without deciding)that the suspension was valid and effective.
In order to consider the second point it is necessary to refer to sections3 and 4 of the Parliament (Powers arid Privileges) Act lYo. 21 of 1953 :—
Section 3 :—“ There shall be freedom of speech, debate and proceedingsin the Houseand such freedom of speech, debate or proceedingsshall not be liable to be impeached or questioned in any courtor place out of the House
Section 4“ Ho member shall be liable to.any civil or criminal pro-
ceedings, arrest, imprisonment, or damages by reason of a'ny-thing which he may have said in the House or by reason ofany matter or thing which he may have brought before the Houseby petition, bill, resolution, motion or otherwise.
The argument for the respondents based on section 3 of the Act, whichis an adaptation of Article 9 of the Bill of Rights, is that their conductwas part of the proceedings of the House and cannot therefore beimpeached or questioned except by the House itself. It is interestingalso to notice that section 4, more or less in amplification of section 3,protects a member from liability to civil or criminal proceedings ' byreason of any matter or thing which he may have brought before theHouse by petition, bill, resolution, motion or otherwise ”, and thatsection 9 requires the Courts to take judicial notice of the privileges ofthe House. The first question which arises is whether the immunityconferred by sections 3 and 4 for proceed!rigs in the House are in any wayqualified by Part II of the Act. It is true that section 22 appears on itsface to confer on the Supreme Court jurisdiction over all offences specifiedin the Schedule and that section 23 contemplates the possibility that theCourt can convict a member of an offence under the Act. But does thiscontemplation amount to an expression of intention by the Legislaturethat the Court will have power to convict a member even in a case wherehis conduct would otherwise be protected by the freedom of speech,debate and proceedings conferred in Part I ? I give without hesitationa negative answer to this question, and I am supported in that answerby the qualified concession made by the Attorney-General. There aremany well-recognised inodes by which the Legislature ordinarily expressesits intention that some right, benefit or immunity conferred by oneprovision of law must be regarded as taken away by another. It sufficesto point out that no such recognised mode has been esnjjloycd in thePowers and Privileges Act. Moreover, it must be borne in mind thatwhen sections 22 and 23 read with the Schedule to the Act contemplatethe possibility of a member being convicted by the Supreme Court, thatis not a mere idle contemplation. Of the large number of acts which aredeclared by the Schedule to be offences, there are several which if com-mitted by a member would not fall within the scope of the immunitiesconferred in Part I and this is specially true in regard to 'nearly all theoffences specified in Part A which are declared to be punishable only .by the Supreme Court. To hold therefore that some of the acts mentionedin the Schedule will, if committed by a member, not be justiciable by theCourt is not to any appreciable extent to nullify' the effect of sections 22and 23. Those sections can be interpreted and applied perfectly consis-tently with the view that the freedom of speech, debate and proceedings
was intended to be preserved intact. If therefore the conduct of therespondents of which complaint is made in the application falls withinthe scope of “ speech, debate or proceedings in the House ” within themeaning of section 3 of the Act-, then clearly this Court has no jurisdictionto question that conduct.
It is urged on behalf of the respondents, on various grounds, thattheir acts namely the motion of the 2nd respondent that the 1st res-pondent do take the Chair and the act of the 1st resjjondent in takingthe Chair after the motion was jessed, are covered by the immunityconferred by these sections of the Act. May in his ParliamentaryPractice (14th Ed pp 59 et seq) discusses Article 9 of the Bill of Bightsunder the topic of the " Bight to exclusive cognisance of proceedingsin Parliament” and refers to three principal matters involved in thestatement of law contained in that Article—
The right- of each House to be the judge of the lawfulness of its
own proceedings ;
The right to punish its own members for their conduct in Parlia-
ment ;
The precise meaning of the term “ proceedings in Parliament ”.
In regard to the first of these matters, May (at p. CO) makes thegeneral observation that ” the House is not responsible to any externalauthority for following the rules (of procedure) it lays down for itself,but may depart from them at its own discretion ”. This right of theHouse holds good even where the procedure is laid down by statute, andfor such purposes (i.e-. in regard to procedure) the House can “ practicallychange or supersede the law — Coleridge C.J. in Brat! fa ugh v. Gossel '.In the same case Mr. Justice Stephen made the following observations :—
” Suppose that the House of Commons forbids one of its membersto do that which an Act of Parliament requires him to do, and in orderto enforce its prohibition, directs its executive officer to exclude himfrom the House bj‘ force if necessary, is such an order one which wecan declare to be void and restrain the executive officer of the Housefrom carrying out ? In my opinion we have no such power. I thinkthat the House of Commons is not subject to the control of HerMajesty’s Courts in its administration of that part'of the statute lawwhich has relation to its own internal proceedings ”(p. 278).
‘■'It seems to follow that the House of Commons has the exclusivepower of interpreting the statute, so far as the regulation of its ownproceedings within its own walls is concerned ; and that, even if thatinterpretation should be erroneous, this Court has no power to interferowith it directly or indirectly ” (pp. 2S0-2SI).
” The House of Commons.is not.a Court of Justice ; but the effectof its privilege to regulate its own internal concerns practically investsit with a judicial character when it has to apply to partieular;cases theprovisions of Acts of Parliament, ffe must presume that it dischargesthis function properly and with the due regard to the laws in the making •
of which it has so great a share. If its determination is not in accor-dance with law, this resembles the case of an error by a judge whosedecision is not subject to appeal ”(p. 2S5).'
Mr. Justice Stephen found much support for his views from statementsof the judges who decided Slockdale v. Hansard, the case in which theCourts asserted in the strongest way their right to question the legalityof a resolution of the House of Commons where such legality arisesincidentally in an action between party and party.
I pass now to the meaning of the term “ proceedings in Parliament ”.The Attorney-General has relied on statements and citations in May tothe effect that proceedings mean “ the transaction of Parliamentarybusiness ”, or what a member may “ say or do within the scope of hisduties in the course of Parliamentary business ” or “a part of a pro-ceedings of the House in its technical sense i.e. the formal transactionof business with the Speaker in the Chair or in a properly constitutedCommittee ”. Obviously Article 9 of the Bill of Rights was intendedto include within its scope business of the nature referred to in these .citations. But was that all which was intended to be included ? IVasit not intended to include such acts as a giving of notice of a motion ?Standing Order 24 of the House of Representatives requires notices ofmotion to be given in writing and to be handed to the Clerk when theHouse is sitting, or to be sent to or left at the Clerk’s office at any time.
Is not then the handing or delivery to the Clerk of a written notice ofmotion a proceeding covered by the immunity ? Moreover, I take it• that the Standing Orders contemplate the possibility that a member maynot be able to write out his own motion and that he may therefore dictatehis notices to a confidential stenographer or secretary. In my opinionsuch dictation, being an ordinary and even necessary mode by whichbusy men usually have documents prepared, would equally be coveredby the immunity. To take a further example a member would notordinarily give notice of some important motion hi the House withoutfirst assuring himself that some other member will second the motion,and it would seem that a bona fide communication of the subject of hismotion made to another member for this purpose will be protected asbeing a matter or thing brought before the House by motion—(Section4 of the Act). May (at p. 05) refers to a statement made in this connectionby the Select Committee on the Official Secrets Act that, “ cases mayeasily be imagined of communications between one Member and anotheror between a Member and a Minister, so closely related to some matterpending in, or expected to be brought before the House, that, althoughthey do not take place in the Chamber or a committee room, they formpart of the business of the House, as, for example, where a Membersends to a Minister the draft of a question he is thinking of putting down,or shows it to another Member with a view to obtaining advice as to thepropriety of putting it down or'us to the manner in which it should beframed• –•. . I .
– I must refer now to the case of Rivlin v. Bilainkin 1 which" was reliedon by the Attpmey-General. In an action for slander and libel thedefendant in that case was restrained by an interim injunction from
1 (19-53) 1 Q. B. D. 4S5.
repeating the alleged libels and slanders. While the injunction was inforce, the defendant went to the House of Commons and handed to themessenger of the House five communications for delivery to namedmembers of the House, which communications repeated the slanders.In accordance with the rules of the House of Commons, the messengeraccepted one of the communications for delivery to a member of Parlia-ment and the defendant posted the other four in the Post Office withinthe precincts of the House. The plaintiff in the case thereupon appliedfor an order committing the defendant to prison for breach of the injunc-tion ordered by the Court. The argument for the defendant that theCourt had no jurisdiction to make the order for committal since thepublication occurred in theprecinctsof the Houseanil was connected withan attempt to obtain Parliamentary redress for an alleged grievancewas rejected by the Court. McNair J. relied particularly on the factthat the publication was not connected in any way with, the proceedingsin the House. I do not think that the ground of decision taken in acase where a stranger had made a communication to a member wouldbe available against a member who makes a necessary communicationregarding a proposed motion to another member or to his own secretary.I notice also that McNair J. formed his opinion upon a variety of reasons,and that one reason relied on by counsel in the case was that wherea Court has once made an order affecting a private person and not affectingParliament’s own proceedings, the Court will not be deterred fromenforcing its own order because of a claim of Parliamentary privilege.At best the case is only an authority for the proposition that if someperson lias already been prohibited by Court from making a particularstatement, it is no answer for him to say that he made the statementto a member of Parliament.
The Standing Orders also contain provisions which contemplate thatmembers do move motions which are out of order. For instance StandingOrder 17 provides that where there is a motion (called a dilatory motion)for the adjournment of a debate, the Speaker, if he is of opinion that themotion is an abuse of the rules of the House, may nevertheless put thequestion thereupon, from the Chair.
Again there is Standing Order 95 which declares that wh.cn a questionfor debate has been proposed, debated and disposed of, it should notbe competent to any member, without tlie leave of Mr. Speaker, againto propose such question in the same session. Suppose for instance thata motion for the removal from office, of some office holder removableby vote of Parliament, on the ground that lie is a bribe taker lias beendebated and negatived in a session. Suppose then that a member inthe same session again seeks to introduce- the same motion and handsa notice of motion to the Clerk, adding thereto an application for theleave of Mr. Speaker to propose that motion. Will the fact that theSpeaker subsequently refuses to grant leave, render the motion one whichis not protected by the immunity, or will it not instead be the positionthat since the motion is capable of being debated if the necessary leaveis granted, it will be considered cib initio as being a motion, notice ofwhich <s gh'cn as part of-the proceedings of Parliament 1
X have referred to what appear in my opinion to be matters protectedby Article 9 of the Bill of Bights, although they, may not to a puristbe thought to fall within the scope of the express ‘words within theArticle. It would have required both an extraordinary power of antici-pation on the jDart of the framers of the Article, as well as an extraordi-narily fine capacity of expression, for them to write that Article in termswhich would have stated beyond the possibility of argument the trueintended scope of the immunity. And I think that the citations alreadymade from the case of Bradlaugh v. Gossel as to the right of the Houseto control its own proceedings and procedure make it sufficiently clearthat the judge of an English Court would not examine the Article fromthe standpoint of a purist. The terms of section 9 of our Act, in myopinion, require a Judge to pose to himself not the question “is theact of a member outside the scope of the immunity ? ”, but rather thequestion “ is not. the act of a member within the scope of the immunity ?
In other words, sections 3 and 4 must receive a liberal constructionwherever possible in favour of the plea of immunity.
The reason why I have referred to possible acts or conduct of memberswinch in my opinion are covered by the immunity, even though they donot strictly form part of proceedings in the House with the Speaker inthe Chair, is that it seems to me that the question whether any particularact or conduct forms part of “ the 2>roceedings ” contemplated by sections3 and 4 though one of law is nevertheless one of degree ; and I find thoseinstances of assistance when I come to consider whether the conductcontained of in this case is not covered by the immunity.
Let me first take a genuine and unquestionable case of the applicationof section 17 (5) of the Constitution. May (at p. 237) refers to thepractice of the House of Commons in the event of the absence of theSpeaker : the Serjeant at Arms enters the House and jdaces the maceon the table and the Clerk then informs the House of the absence of theSpeaker- and if necessary of the Chairman of Ways and Means ; theChairman of Waj-s and Means or in his absence the Deputy Chairmanthen takes the Chair. Assuming that a similar practice is followedin our House of Representatives (although there is no evidence of it)a member would ordinarily jjropose another to the Chair under section17 (5) only if the Clerk has first announced the absence of the Speaker,the Deputy Speaker and the Deputy Chairman of Committees ; but Ido not see how the failure of the Clerk to announce the absence of thethree designated officers can invalidate a motion that some membertake' the Chair, if in fact those officers are not present. The motionwould then be moved at a stage when the Chair is in fact unocciipied,and such a motion would surely be a proceeding in the House despitethe fact that neither the Speaker nor any other member is in the Chairat the tune the motion is moved. So that the presence of the Speakeror some other presiding member is not an essential pre-requisite torendering the motion a part of the proceedings of the House. It wouldappear, therefore, that there can be a valid proceeding in the House eventhough no person is for the time being presiding. This can only be so,on the legal ground that, when the mace is placed on the table at the timeappointed by Standing Orders for the commencement of a sitting, the
business of tlie sitting can commence ; and if tlie Speaker be then absent,the first- business is that some other member takes, or is voted to, the■Chair under section 17 (5) of tlie Constitution.
Let me now take a case which, however improbable in practice, canlegitimately be said to be possible in theory and to be comparable with-the facts of the present case. Suppose that a Speaker out of sheercaprice or perversity or some more permanent mental defect suspendsthe sitting of the House without any reason, stated or apparent, for aperiocF of four hours. Suppose that the business of the day includes-the consideration of the 2nd and 3rd readings of a bill already passed by-the other House, the enactment of which is urgently required in thepublic interest. Suppose that on such an occasion the Leader of theHouse, after the Speaker vacates the Chair, proposes that the DeputySpeaker should preside, in order that- the business of the clay be transacted ;that- the Deputy Speaker presides accordingly and that thereafter theBill in question is debated and passed. If that- Bill ho presented for theltoyal assent and assent be given, will it be open for any authority,judicial or otherwise, to declare the Bill to be invalid on the ground that■the Chair was improperly taken by the Deputy Speaker ? In myopinion the principle referred to by May, that it is a collective right of theHouse to settle its own code of procedure and to depart from that, codeat- its own discretion, will preclude any Cosirt from questioning the validity■of the Bill. The only appropriate means, if any, bj" which proceedingsso taken with the Deputy Speaker in (lie Chair can be rendered invalidis by a successful motion in the House itself that the proceedings be-expunged from the Journal and Minutes of the House. '
It is important- to note in this connection that there is ho StandingOrder which prevents a member from moving a motion like that- movedin the present ease, on the ground that- the Speaker had suspended thesitting. It- is the contention on both sides that despite the vacation oftlie Chair by the Speaker on April 6th, 1955, the House was still techni-cally sitting, the mace remaining on the table. The admitted factstherefore render the circumstances of the occasion almost parallel tothe circumstances of the two other occasions to which I have alreadyreferred, namely the announced absence of the Speaker at the commence-ment- of a sitting or a causeless suspension.
The apparent object of the 2nd respondent in moving his motion wasto secure if possible that the House should continue to sit and transactbusiness despite the order of suspension. I cannot think of a motionwhich can be said to be more directly referable to a desire to carry outtlie duties and functions of membership than one moved for the purposeof proceeding with the business of a sitting sooner than the Speakermay have contemplated. It may be true in fact that the 2nd respondenthad an additional motive in mind, namely that by proceeding to transactbusiness the House would flout the Speaker’s order of suspension. Ifthere eras present that additional motive, then perhaps he w ould, thoughacting in his capacity as a member, yet be guilty of disrespectful conduct,but if such had been the case, it would not be different from a case wherea member while speaking in debate in actual proceedings in tlie Houserefers to the Speaker by a dirty name. Conduct of the latter kind,
however disrespectful, would clearly not be justiciable by this Court,for the reason that it would, be protected by the immunity conferredby sections 3 and 4 of the Act.
The view which I take of the matter does not have the consequencethat a jnember can be disrespectful with impunity. I have alreadyreferred to the principle involved in Article 9 of the Bill of Rights that_the House has the right to punish its own members for their conduct inParliament. Hay (at p. 429) refers to cases where members of the BritishParliament have been committed to the custody of the Serjeant or evensent to the Tower for the use of treasonable or seditious language, andto the power to punish a member for disrespect of the House itself. Sofar as the Houses in Ceylon arc concerned, there are the powers of namingand suspension xeferred to in Standing Orders S2-S7 as well as the powersof admonition, removal and suspension declared by sections 22, 27 and2S of the Powers and Privileges Act.
The conclusion which I reach for these reasons is that assuming thesusixension to have been valid, and assuming an intention on the partof the respondents to be disrespectful, their conduct, being conductincluded within the scope of sections 3 and 4 of the Act, cannot be ques-tioned or impeached in proceedings taken in this Court under section23 of the Act. The jurisdiction to take cognisance of such conductwas exclusively vested in the House of Representatives. The respondentsarc accordingly discharged from the notices served on them.
There is one observation which I consider it necessary to make, eventhough it be obiter. It has been argued that, having regard to thephraseologj* employed in Part B of the Schedule to the Act, paragraph 7in that Part will cover only disrespectful conduct in the precincts of theHouse, and not such conduct in the House itself or in a Committee.
If, as one might reasonably expect, the intention of Parliament wasto include disrespectful conduct on the part of members and strangerswhether in the Chamber or the precincts, it may be advisable to supplyby an amendment the omission of the draftsman to give unambiguoxisexpression to that intention.
Applicaiion dismissed.