THE QUEEN v. THEJAWATHIE GUNAWARDENE

049-NLR-NLR-V-56-THE-QUEEN-v.-THEJAWATHIE-GUNAWARDENE.pdf

The Queen v. Gunawardene
193
[Trial at Bab]
1954Present: Rose C.J., Gunasekara J. and Pulle J.THE QUEEN v. THEJAWATHIE GUNAWARDENEInformation No. 1 of 1954 exhibited in the Supreme Courtby the Attorney-General
Informations—Power of AUomey-General to exhibit informations—Circumstanceswhen informations may be presented—Criminal Procedure Code, e. 386.
Trial at Bar—Direction of Minister of Justice—Jurisdiction of Court to adjudicateupon its validity—“ Disturbance of public feeling ”—Test of its existence—How far justiciable—Criminal Procedure Code, s. 410a (1) and (2).
Information was exhibited by the Attorney-General against the defendanton August 5, 1964, charging her with criminal defamation in respeot of adefamatory statement published on July 1, 1954, in a newspaper called Trine ”,concerning a person who had held high office in Government for many years invarious capacities and who, on the day previous to the date of publioatione of the statement, had ceased to hold office as Minister of Finance and wasGovernor-General designate. The alleged libel was to the effect that theGovernor-General designate had been engaged in swindles on an internationalscale and that a public trial of the gang—of which presumably he was a member—was imperative..
On August (5, 1954, the Chief Justice received from the Minister of Justice awritten communication dated the previous day and purporting to be a directionunder Soction 440a of the Criminal Procedure Code that the defendant should)>o tried at Bar by three Judges without a Jury.
Before defendant pleaded to the information her Counsel moved that thninformation be quashed on the ground that it was one which the Attorney-General could not validly exhibit, and also contended that the direotion of theMinister of Justice was invalid.
Held, that if the Attorney-General in whom rested the discretion eitherto proceed by indictment or information took the view that the imputationswhich were the subject of the information tended to disturb or endanger theGovernment, it was impossible to hold, assuming that the Court had the powerto review tliat discretion, that that view was wrong. The speedy process ofinformation was designed not to vindicate the personal honour of the officerlibelled but to counteract what was essentially a public mischief. In thecircumstances the Attorney-General had the power under Section 385 of theCriminal Procedure Code to file the information, and the application to quash itmust accordingly fail.
Quaere, wliothor in any event the Court had the power to quash an ex officioinformation ?
Held further, (i) that the Court had jurisdiction to adjudicate upon thequestion whether the direction given by the Minister of Justice was a validdirection in the sense that it complied with the requirements of Section 440aof the Criminal Pi ocedure Code. The oiraumstance. that the Minister hadpurported to direct that the information “ shall be tried before the SupremeCourt at Bar by three Judges without a Jury ” did not liave the effect that aBench of three Judges which assembled to hear the information ceased to bethe Supreme Court and'beioame a different tribunal created by-the Minister.- '
that there was no requirement to give the Minister of Justice anopportunity of being heard in support of the direction given by him. '
LVI.
2J. N. 1) 42006 —1,605 (1/60)
194
The Queen v. Gunawaniene
(by the majority of the Court) that In a oaso of disturbance of publicfeeling, before the Minister of Justioe proceed* under Section 440a (1) (6) to theconsideration of the question as to whether the matter is appropriately triableby three Judges without a Jury there must be reasonable grounds for his beliefthat there is a disturbance of public feeling. The sole test to be applied inBuch a case is whether, in the opinion of the Court, a reasonable man occupyingtho seat of the Minister could reasonably come to the conclusion that thereexisted a disturbance of public feeling.
fl
(by the majority of the Court) that the principlo omnia praeeumvnlurrite esee acta was applicable to the Minister’s order.
that the phrase “ disturbance of public feeling” was not (in the opinionof tho majority of tho Court ) limited to cases where there was an open manifests,tion of publio feeling. One of the tests which could be applied to determinewhether or not a disturbance of public feeling exists would be to consider thereactions to the matter in question of the ordinary citizon in various walks oflife. Applying that test in the present case, the questio-i as to whether therewas reasonable ground for the belief that there existed a disturbance of publicfeeling in oonsequence of the publication of the defamatory statement shouldbe answered (by the whole Court) in the affirmative.
OrDER made in respect of preliminary objections taken to a trialat Bar upon information exhibited by the Attorney-General. Thefacts appear from the head-note.
D. N. Pritt, Q.C., with Izadeen Mohamed, A. S. Vanigasooriar, L. Muttu-tantiri and F. R. Dias, for the defendant.—My preliminary objection isreally in the form of a “ double 'motion ” seeking to deprive the Crownof both its advantages, viz. : trial at Bar by 3 Judges without a Juryand proceedings by Criminal Information.
(1) The direction by the Minister of Justice under Section 440a of theCriminal Procedure Code must be quashed. In the first place it must beborne in mind that Section 440a was introduced into the Statute Book tomeet a particular situation, the disturbances of 1915. The section musttherefore be construed in the fight of the circumstances that obtainedat that time. The Court can take judicial notice of those circumstancesand can even make reference to the proceedings of the Legislative Councilduring the debate on this amendment to the Criminal Procedure Code.Those circumstances were extraordinary circumstances and it is onlyin similar circumstances that the powers conferred In the Executiveby this Section were intended by the' Legislature to be invoked. Itcannot even be suggested that the country found itself in any suchsituation at the time of the Minister’s direction in this case, viz. August,
1954.
Secondly, the words of the Section must be interpreted strictly.Section 440a (1) (b) provides that" in the case of any other offence” (i.e.any offence other than an offence under Section 120 of the Penal Code)“ which by reason of civil commotion, disturbance of public feeling orf^ny other similar cause, the Minister of Justice may consider to be appro-priately. triable • in the manner in this section provided, the Minister ofJustice, may-direct ..It is submitted that before the Minister
can make a direction under thissection there must exist in fact some "civilcommotion, disturbance of public feeling of any other similar cause
The Queen v. Qunawardene
106
Thereafter, the Minister must consider whether theoffenoe is “ appro-priately triable ” as provided. Those are the two requirements of thesection..
As regards the first requirement, “ any other similar cause ” must beread “ ejusdem generis ” with “ civil commotion, a disturbance ofpublic feeling The Crown must prove the existence, in fact, of suchcircumstances at the relevant time. On a proper interpretation ofSection 440a (1) (b), those are matters the existence of which must beestablished to the satisfaction of the Court. The Court has jurisdiction toenquire into that question as it is a necessary and essential pre-conditionto the valid exercise of the Minister’s powers. The question of whether ornot there existed in fact “ civil commotion, disturbance of publio feelingor any other similar cause ” is a “ justiciable ” or “ judiciable ” issueand not one on which the Minister and he alone must deeide. Thisview is supported by the decisions in Liversidge v. Anderson1;R.v. Holliday* Eshekbye Eleko v. Officer Administering the Governmentof Nigeria8 and the Ceylon cases of Bracegirdle*; Naklcuda Ali v.M. F. de S. Jayaratne 8 and M. F. de S. Jayaratne v. Miya ®. The case ofLiversidge v. Anderson, which is now regarded as a leading case, uponclose analysis supports the above contention. The facts in that case weretotally different and though the actual decision in that case is basedon those particular facts, the principle on which the House of Lordsarrived at the decision is now well established.
If this view is acceptable, then the Court must have evidence placedbefore it of the existence of “ civil commotion, disturbance of publicfeeling or any other similar cause ”. What is “ civil commotion ” ?There must be violence and tumult—see Cooper v. General AccidentAssurance Corporation7 ; Levy v. Assicurazioni Generali8 ; Motor UnionInsurance Co. v. Boggan9. For “disturbance” see Tillmans tfe Co. v.Steamship Knutsford Co.10. The defence is under no obligation to provethq non-existence of any such circumstances. The Crown must satisfythe Court of the existence of such circumstances. There is no evidenceat all, so far, placed before the Court that at the time of the Minister’sdirection there was, in fact, any of these conditions existing. .
The second requirement of Section 440a (l) (b) is that the Ministermust consider that the offence is appropriately triable as provided. Theword “ consider ” must mean “ hold the view ”. That is a matter forthe Minister’s sole discretion and the Court has no jurisdiction to questionthe Minister’s conclusions. The Minister must give his mind (i.e. consider)and must come to a conclusion. In this case there is no evidence beforeCourt that the Minister has “ considered ” in the sense that he gavehis mind to it and arrived at a conclusion. The instrument signed by theMinister does not state that he had given his mind to it and was satisfiedthat this was a case appropriately triable without a Jury. The directionsigned by the Minister is a bald direction simpliciter.
1(1942) A. C. 206.
(1917) A. C. 260.
(1931) A. C. 662.
‘ (1937) 39 N. L. R. 193.
(I960) SI N. L. R. 467.
(1961) 52 N. L. R. 249.
(1922) 128 L. T. 481.
(1940) A. C. 791.
(1923) 130 L. T. 588.
(1908) 24 T. L. R. 454.
1B6
The Queen v. Qunatoatdene
[To Rose C.J. : The doctrine omnia praesumimtur rite esse acta canonly be applied if it is established that the Minister did bring his mindto bear on the matter.]
Finally, the Minister’s direction is bad on the face of the instrument.
It does not state that there exists in fact any “ civil commotion, dis-turbance of public feeling or any other similar cause Nor does itstate that by reason of any one of these the Minister considers this to bea case appropriately triable under Section 440a.
[To Rose C.J. : Even if the direction had stated “ whereas I amsatisfied ” it still would not affect my principal submission that it is theCourt and not the Minister that must be satisfied as to the existence ofcivil commotion, &c.]
The doctrine omnia praesumuntur rite esse acta will not apply in a casewhere a document is ex facie bad or invalid.
Summary (i) There must have existed, in fact, a “ civil commotion,disturbance of public feeling or other similar cause ”—Whether or notthese existed is a matter for the Court to decide on evidence.
The Minister must bring his mind to bear on the question whether—once it has been established that there is civil commotion, &c.—the caseis one for trial under Section 440a.
The Minister’s direction must bear on the face of it a statementthat he did so consider the matter.
[To Gunasekaha J. : It is conceded that if the Minister’s directionis bad, that does not mean that the Attorney-General’s Informationmust necessarily be quashed. – That is another matter.]
(2) The information exhibited by the Attorney-General must boquashed.'
The only section which empowers the Attorney-General to exhibit aCriminal Information is Section 385 of the Criminal Procedure Code. Thatsection enables the Attorney-General to exhibit criminal informationsonly for those purposes for which the Attorney-General in Englandmay exhibit informations on behalf of the Crown in the High Court andfor no other. The word used is “ purposes ” and not “ offences ”.For the purpose for which this procedure is resorted to in England—see Short & Mellor on Crown Office Practice. The information in thiscase nowhere states what the purpose is for which it lias been exhibited.
[To Rose C.J. : It is conceded that the meaning of the word “ purposes”in the section is somewhat difficult. It could mean “ objects ”.]
Secondly , the Courts in England act strictly in giving leave to bringcriminal informations—see Blackstone’s Commentaries, Vol. 4, Ch. 23,and R. v. Labouchere *. The cases in England where criminal infor-mation procedure has been resorted to are generally cases of sedition e.g.R. v. Cobbett2 ; R. v. Home3 ; R. v. Burdelt*.
• (1882) 12 Q. B. U.* 20 Howe's St. Tr. 651.
» 29 Rowe'e St. Tr. 1.* 3 B. Aid. 717.
The Queen v. Cunawardene
197
[To Gunasekara J|. : Archibold in his treatise on Criminal Pleadingdoes mention a case in which the offence related to a vast fraud in respectof a Bank—i.e. R. v. Brown et al.*.]
[To Rose C.J. : In the case of R. v. Mylius in 1911 no objection wasraised to the use of the procedure by Criminal Information.]
Thirdly, ex officio informations are exhibited only where the Sovereignherself or her Ministers are libelled for such “ enormous misdemeanours ”as tend to interfere with the exercise of royal functions or tend toendanger the Government. In this case, on the 1st of July Sir OliverGoonetilleke was a mere private person. There is no office known os“ Governor-General Designate ”. In this case procedure by Informationis unwarranted and the Information should be quashed.
//. II. Basnayake, Q.C., Attorney-General, with T. S. Fernando, Q.C.,Solicitor-General, V. S. A. Pullenayagam, N. T. D. Kanakaratne andR. S. Wanasundera, Crown Counsel, for the Crown.—My first submissionis really a kind of preliminary objection to the preliminary objectionraised by Counsel for the defence, that is that tho Minister’s directioncannot be questioned in these proceedings and that this Court has no juris-diction to consider its validity. That submission is based on the followinggrounds—(1) Tho Minister’s direction under Section 440a of the CriminalProcedure Code is the sole authority for the trial of the defondant bythree Judges without a Jury. The original jurisdiction of the SupremeCourt is to be found exclusively in Sections 19, 29, 42 and 45 of the CourtsOrdinance. There is no “ inherent ” jurisdiction apart from the Statute—see Mohamado v. Ibrahim 1 2 ; In re Election of a Member for the LocalBoard of Jaffna 3 ; Deonis v. Samarasinghe 4. The only power for threeJudges of the Supreme Court to try a person without a Jury is thereforederived from the Minister’s direction and the Judges who assemble inpursuance of that direction have no jurisdiction to go into its validityand make any pronouncement thereon.
[To Rose C.J. : If the Minister’s direction be illegal the defendantmust seek his remedy elsewhere—perhaps by way of habeas corpusproceedings or appeal to the Court of Criminal Appeal (see Court ofCriminal Appeal Ordinance Section 5 (4). ]
The Court cannot examine the very instrument which brought it into exis-tence. (2) The direction made by the Minister cannot be questioned inthese proceedings. It can be questioned, if at all, only in proceedings towhich the Minister is a party. The Minister is not a party to theseproceedings. To declare the Minister’s direction invalid or bad withoutgiving him an opportunity of being heard would be a violation of therules of natural justice. In all the English cases where similar Ministerialdirections have been questioned the Minister has been' made a party,e.g. : R. v. Inspector of Lehman Street Police Station, ex p. Venicoff6 ;O'Brien v. Home Secretary8 ; R. v. Home Secretary, ex p. Bressler7 ;
1 (1858) 7 Cox. C. C. 442.* (1911) IS N. L. R. 39.
2 (1895) 2 N. X. R. 36.‘ (1920) 3 K. B. D. 72.
(1907) 1 A. C. R. 128.• (1923) A. O. 603.
. 7 (1924) 131 L. T. 386.
198
The Queen v. Ounawardene
Stuart v. Anderson1 ; R. v. Governor of Brixton Prison, exp. Pitt Rivera2 ;R. v. Home Secretary ex p. Budd3 ; Liversidge v. Anderson* ; Point ofAyr Collieries Ltd. v. Lloyd George5 ; CarUona Ltd. v. Commissioners ofWorks0 ; Amand v. Home Secretary7 ; Robinson v. Minister of Town andCountry Planning 8 ; Johnson <fc Co. v. Minister of Health9 ; Franklin v.Minister of Town Country Planning10 . The only cases in whichthe Minister has not been made a party are cases where it was not thevalidity of his order which was questioned, but the validity of the lawitself as in R. v. Holliday11 ; R. v. Governor of Brixton Prison, ex p.Savarkar12 ; R. v. Inspector of Vine Street Police Station, exp. Liebmann13 ;R. v. Governor of Lewes Prison, exp. Doyle14 ; R. v. Governor of WormwoodScrubs Prison 16 ; -R. v. Superintendent of Chiswick Police Station, ex p.Sacksteder 19.(3) The statute provides for no appeal from the Minister’s
direction. To hoar objections amounting to an appeal from the directionwould amount to the assumption of an unwarranted jurisdiction. The•Court cannot act as an appellate body and review the Minister’s direction.R. v. Home Secretary, ex p. Lees17 ; Stuart v. Anderson13.
My second submission—assuming, without conceding, that theJudges who assemble in pursuance of the Minister’s direction can gointo the validity of that direction—is that the Minister’s direction isvalid and regular. He undoubtedly has the power to make the orderhe purports to make. The order cites the provision of law under whichhe purports to act and the order is under his own hand. Such an orderis valid and regular—see Point of Ayr Collieries Ltd. v. Lloyd George19 ;Liversidge v. Anderson20 ; R. v. Home Secretary, ex p. Lees 21 ; Stuart v.Anderson82; El Dabbah v. A. G. for Palestine23. Where a Minister makesa direction in which he cites the statutory power under which he isacting and signs it the presumption is that he has complied with all theconditions requisite for the making of such a direction. The jnaximomnia pracsumuntur rite esse acta applies. See Evidence Ordinance■Section 114 Illustration (d); R. v. Reynolds24 ; Bhagat Singh v. Emperor 25 ;Vallibhai Ibrahim v. Emperor 26 ; Liversidge v. Anderson 27. The onus ofrebutting this presumption is on the Defendant—see Greene v. HomeSecretary28 ; Liversidge v. Anderson29 ; Point of Ayr Collieries Ltd. v.Lloyd George 30.
My third submission is that the words of Section 440a (1) (6) must be giventheir natural meaning—that is the cardinal principle of interpretation.The words must be construed as they would have been construed on the
day the provision was introduced.
(1941) 2 A. E. R. 665.
{1942) 1 A.E.R. 207.
(1942) 1 A. E. R. 373.
4 (1942) A. C. 206.
(1943) 2 A. E. R. 546.
(1943) 2 A. E. R. 560.
7 (1943) A. C. 147.
(1947) l A. E. R.851.
(1947) 2 A. E. R. 395.
48 (1948) A. C. 87.
(1917) A. C. 260.
11 (1910) 2 K. B. 1056.
’* (1916) 1 K. B. 268.
14 (1917) 2 K. B. 254.
44 (1920) 2 K. B. 305.
On a natural construction of the
“ (1918) 1 K. B. 578.
(1941) 1 K. B. D. 72, at 84.
” (1941) 2 A. E. R. 665, at 670.
(1943) 2 A. E. R. 546, at 548.
88 (1942) A. C. 206.
*« (1941) 1 K. B. D. 72, at 78.
“ (1941) 2 A. E. R. 665. at 669.
*» (1944) A. C. 156 at 163.
** (1893) 2 Q. B. D. 75.
” (1931) A. I. R. (P.C.) 111.
*• (1933) A. I. R. (Bombay) 79.
17 (1942) A. C. 206, at 225.
»* (1942) A. C. 284, at 295.
” (1942) A. G. 206, at 225.
80 (1943) 2 A. E.R. 546, at 547.
The Queen v. Qunawardene
199
section it seems clear that the Legislature has made-the Minister the soleJudge of the matters that , should be decided before a direction underthat section is made. The jurisdiction of the Court has been excluded.It would be unthinkable that the Legislature would have created such anunpractical and impracticable situation as to make the Court decide,on evidence, whether or not there existed in fact a civil commotion,disturbance of public feeling, &c. It is submitted that this is not a“ justiciable ” issue. Similar words in other cases have received theinterpretation contended for by the Crown in this case—see BhagatSingh v. Emperorl; Liversidge v. Anderson1 2 ; Emperor v. Sarma3.The entire trend of judicial decisions today in interpreting words givingsimilar powers to Ministers is in Bupport of this contention—Point of AyrCollieries Ltd. v. Lloyd Charge4 * ; Carltona v. Commissioners of Works6 ;Robinson v. Minister of Town da Country Planning•; Franklin v.Minister of Town and Country Planning7.Nor is this rule of construc-
tion restricted to times of emergency only—see Wijesekera v. Feating 8 ;Robinson v. Minister of Town da Country Planning ®. It was concededby Defence Counsel that the Court cannot go into the reasons for theMinister considering this a case “ appropriately triable ” as provided,once the existence of the pre-conditions is proved. It was sought tosplit the section into one part subject to the “ objective ’* test and intoanother subject to the “ subjective ” test. The section cannot thusbe split up so as to enable the Court to look into one part and not theother—see Liversidge v. Anderson10.
It is finally submitted on the first motion that it is only when theMinister’s good faith has been questioned that the Courts would investi-gate the grounds for or the reasonableness of the Minister’s direction.In this case the Minister’s bona fides has not been questioned. All theCourt can do is to see whether the power the Minister claims to exerciseis one which falls within the four comers of the statutory provision.
[The Attorney-General then distinguished the cases cited by Mr. Prittas being inapplicable to the issue now being argued]. Nakkuda All’scase (followed in Mohamed Miya's case) has to be considered on its parti-cular facts. The Textile Control Regulation there considered was oneof a number of regulations which formed part of a vast wartime .controlscheme. The only principle to be derived from that decision is thateach set of words must be interpreted in their context without overduereference to generalisations. In Edurkbayi Eleko v. Officer Administeringthe Government of Nigeria the question that had to be considered bythe Governor was a “ judiciable ” issue, viz.: whether or not the petitionerwas a Native Chief and whether or not he was deposed. The Courtsundoubtedly had a right to review the Governor's decision in that case.In the Bracegirdle case12, the question of whether or not a state of emer-gency existed was never in issue so that the question whether theGovernor’s opinion as to the existence of such' a state of emergencycould be canvassed before the Court never arose in that case.
1 (1931) A. I. R. (P.C.) 111.
3 (1942) A. C. 206.
3(1945) A. C. 14.
* (1943) 2 A. E. R. 546.
(1943) 2 A. E. R. 560.
« (1947) 1 A.E.R. 851.
7 (1948) A. C. 87.
• (1919) A. C. 646.
(1947) 1 A. E. R: 851.
(1942) A. C. 206, at 221.
(1931) A. O. 662.
(1937) 39 N. L. R. 193.
200
The. Queen v. Chmatoardene
Coming now to the objection regarding procedure by way ofCriminal Information. In the first place this Information is well withinthe powers conferred on the Attorney-General by Section 385 of tho CriminalProcedure Code. The word “ purposes ” in that section can only mead“ objects ” if the section is to have any meaning at all. The objectsfor which the Attorney-General in England can exhibit ex officio Infor-mations are fully set out in a number of treatises—see Blackstone’sCommentaries Vol. TV, p. 308—309, Bacon's “Abridgment” Vol. IV, p.402—404, Cole's “ Informations ” p. 9—10, 12—13 ; Wood Renton's “ Ency-clopaedia of the Laws of England, Vol. VU. Libels on the Sovereign andon her Ministers and Judges are clearly one class of such objects. InEngland the last occasion on which an “ ex officio ” Information wasexhibited was for a libel on H. M. King George V—R. v. Mylius, [1911],Times of 11.2.1911. In Ceylon, Informations were exhibited in a seditioncase.in R. v. Sirisena in 1917 and in the Bo-Tree Case in 1929. Thoughtechnically not a Minister on July 1st, 1954, Sir Oliver Goonetillekecan by no means be described as a private person. He had beenappointed to succeed Lord Soulbury.. The Information procedure wastherefore proper in this case. R. v. Brown1 shows that in EnglandInformation was used even in cases where private individuals wereaffected, but in a way amounting to a public scandal.
Secondly, the Court will not quash an “ ex officio " Information—see Bacon’s “Abridgment” Vol. IV, p. 404; Blackstone's “Commentaries ”Vol. IV, p. 262; Cole's “Information” p. 70; Holt’s “Law of Libel”p. 104. Also R. v. Abraham2 ; Prynne’s Cases ; R. v. Nixon*.
D. N. Pritt, Q.C., replied.—Any Court in every case has power toconsider the question of its jurisdiction to hear the matter before it.There iB no difference in a case where the question relates to the verycreation of the Court. There is an inherent power in the Court to enter-tain a plea to jurisdiction—R. v. City of London dec. Rent Tribunal, ex p.Honig5 ; R. v. Jameson6 ; R. v. Wilson7 ; In re s.s. “ Arnaldo daBrescia ” 8. It is not necessary that the Minister should be made a partyin a case where his direction is to be considered. The Audi alterampartem rule presupposes a “ lis ” between parties. Here, there is nosuch “ lis ”—it is analogous to a Judge’s order being reviewed by a Courtof Appeal without that Judge being made party to the appellateproceedings..
The' maxim omnia praesumuntur rite esse acta is not applicablein this case. It applies only where there is evidence that an act has beendone. The rule of presumption is not that an act has been done butthat where it is proved that an act has been done, it is presumed to havebeen done properly—see Monir on Evidence, p. 866. Also Gwill v.Emperor9 ; Harjiran Shah v. Emperor10.
As regards the actual interpretation of the words of Section 440a (1) (6),the words must be examined in their context. “ Disturbance of publiofeeing ” can mean a “ simmering ” of public feeling as opposed to an
M1858) 7 Cox C. C. 442.'« (1896) 2 Q. 5. D. 425.
IKM) 90 E. R.392.">{1846) 6 Q. B. 620.
(1689) 87 E. R.764.»{1922) 23 N. L. R. 391.
(17C-6) 93 E. R.462.*(1945 A. I. R. {Bomb.) 368.
1 ‘>9M) 1 A. E. R. 195.10{1946) A. I. R. (Bomb.) 492.
The Queen v. Qunawardene
201
.actual “ boiling over ”, e.g. the recent constitutional and political crisisin Pakistan may be regarded as having led to a disturbance of publicfeeling. Similarly in Great Britain the abdication crisis resulted in adisturbance of public feeling. The onus of establishing the existenceof any such phenomenon, is on the Crown—see Sections 101,103 and 106of the Evidence Ordinance. Also if. v. HollidayL
The decision in Liversidge v. Anderson2 must be restricted to thefacts and circumstances of that case. It would be improper to attemptto derive from that judgment a general principle of interpretation—see Lord Radcliffe’s view on Liversidge’s case in Nakhuda Alt v. Jaya-ratne3. These special matters must be remembered when consideringLiversidge's case—(1) it was a period of grave national emergency,
the information on which the Home Secretary purported to basehis decision was of a highly confidential nature, (3) the grounds for theHome Secretary’s action were therefore quite unsuitable for considera-tion in a Court of Law. It is submitted that too much must not besought to be gained from that decision. The Indian cases cited by theAttorney-General—Bhagat Singh v. Emperor * and Emperor v. Sarma 6—were both cases dealing with total powers conferred on the Governor-General to act in times of emergency. .
D. S. Jayawickreine, Q.C., with Stanley de Zoysa, watched the interestsof the “ Free Press of Ceylon ”.
Car. adv. tmil.
November 9, 1954.
The following is the order of the Court :—
The defendant has appeared before this court to answer a charge ofcriminal defamation alleged against her in an information exhibited bythe Attorney-General on the 5th August, 1954. The information allegesthat on or about the 1st day of July, 1954, the defendant defamedSir Oliver Goonetilleke, then Governor-General designate, by publishingin an issue of a newspaper called “ Trine ” a statement, inter alia, to thoeffect that he had been engaged in swindles on an international scaleand that a public trial of the gang—of which presumably he was amember—was imperative. On the 6th August the Chief Justice receivedfrom the Minister of Justice a written communication dated the previousday and purporting to be a direction under Section 440a of the CriminalProcedure Code that the defendant should be tried at bar by three
0 1 {1917) A. a. 260, at p. 273.a {1950) 51 N. L. R. 457.
* (1912) A. C. 206.4 (1931) A. I. R. (P.O.) 111.
• (1945) A.C. 14.
202
The Queen v. Ounawardene
Judges without a Jury. The defendant’s counsel moves that the infor-mation be quashed and also contends that the Minister’s direction isinvalid.
An order quashing the information is asked for on the ground thatit is one which the Attorney-General could not validly exhibit. It wassubmitted that if one examines the purposes for which the Attorney-General in England may, ex officio, exhibit an information, the presentinformation falls outside those purposes. In particular it was urgedthat on the date of the alleged libel, namely, the 1st July, 1954, Sir OliverGoonetilleke was noli the Governor-General, that he did not hold -anyhigh office and that he was not part of the apparatus of Governmentand that, therefore, the imputations published only affected him as aprivate citizen which might well be the subject of an ordinary criminalor civil suit but not justifying recourse to the extraordinary procedureby way of information ex officio.■ . ■ ■■■
The Attorney-General contended that the information filed againstthe defendant was within the powers conferred on him by Section 385of the Criminal Procedure Code, that a motion to quash an ex officioinformation could not be entertained in these proceedings and that,in any event, a court has no power to quash such an information.
It may perhaps be helpful to state here that immediately prior to1st July, 1954, Sir Oliver held high office in Government for many yearsin various capacities. On the 21st April, 1954, an official announcementwas made that he would succeed Lord Soulbury in the Office of Governor-General. On the 24th June, 1954, a Commission was issued under HerMajesty’s Sign Manual and Signet appointing him to that office. TheCommission further provided that upon his taking the prescribed oathsand entering upon the duties of his office it should supersede theCommission appointing Lord Soulbury. Sir Oliver was sworn in asGovernor-General on the 17th July, 1954.
Section 385 of the Criminal Procedure Code confers on the Attorney-General the power to proceed by information in the like circumstancesin which the Attorney-General of England would have the right toexhibit an information, subject to the limitation that while the ex officioinformation in England is confined to misdemeanours, in Ceylon theclass of offences is limited with reference to the punishment providedfor them. We would point out that while in England the procedureby way of private information has been abolished comparatively recently,the powers of the Attorney-General to exhibit informations, ex officio,remain unaffected. This procedure is no doubt intended to apply tothose exceptional circumstances, to which we will in a moment refer,in which it is desirable that the machinery of the criminal law should beput swiftly in motion. A number of commentaries and cases dealingwith the power of the Attorney-General in England to file ex officioinformations have been read to iis. We do not think it necessary to
The Queen v. China wardene
lfl»U
refer to them because their result is conveniently summarized in Arch-bold’s Criminal Pleading, 33rd edition, page 115, in the following words :
“ The usual objects of an information ex officio are properly suchenormous misdemeanours as peculiarly tend to disturb or endangerthe King’s Government, or to molest or affront him in the regulardischarge of his royal functions, such, for instance, as …. libels
upon the King or His Ministers, the Judges or other high Officers,reflecting upon their conduct in the execution of their official duties. ”
o We do not think that there is substance in the argument that becauseon the 1st July, Sir Oliver was not holding the Office of a Minister andhad not then entered upon the duties.of the Office of Governor-General,to which he had been appointed by the Commission dated the 24th June,he falls outside the class of persons described as “ other high officers ”in the passage cited from Archbold. It has to be remembered that theimputations which are the subject of the information are, at least byimplication, a grave reflection on the very Government the Head of which:was responsible, while Sir Oliver was still a member of it, for advisingHer Majesty to appoint him to the highest office in the country. If theAttorney-General in whom rests the discretion either to proceed byindictment or information takes the view that the imputations tend todisturb or endanger the Government, it seems to us that it is impossibleto hold, assuming that we have the power to review that discretion,that that view is wrong.
No case: raising a point similar to the one with which we are presentlyconcerned has boon cited. Nevertheless we presume that the common,law of England under which the Attorney-General of that country actsin presenting informations ex officio can adapt itself to varying circum-stances which come within the ambit of the principle; so that the presentmatter would not seem to be excluded from the speedy process by wayof information, which process is not designed to vindicate the personalhonour of the officer libelled but to counteract what is essentially apublic mischief.
The case of Reg. v. Brown and others1 would seem to be in point. Inthat case the directors of a joint stock bank were tried by a jury on anex officio information filed by the Attorney-General charging them withconspiracy to defraud the public by false representation. They wereconvicted and before passing sentence Lord Campbell, C.J., pointed outat page 452 that the information was properly filed by the Attorney-General because the matter alleged was not a mere breach of contractwith the shareholders or customers of the bank but amounted to acriminal conspiracy inevitably leading to a great public mischief.
Although it may be technically correct to say that Sir Oliver .did nothold high office between the 30th June when he resigned from the Officeof Minister of Finance and the 17th July when he was sworn in as Governor-General, it seems to us that for the purpose which we are now consideringit would be no less mischievous to defame the Governor-Generaldesignate than to defame the Governor-General himself.
1 7 Cox C. C. 442.
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The Queen v. OunaWar&ene
Wo are of the opinion for the reasons stated that the Attorney-Generalhad the power under Section 385 t?f the Criminal Procedure Code to filethe information and the application to quash'it must accordingly fail.We need not, therefore, answer the subsidiary question whether in anyevent the court has the power to quash an ex officio information. *
We now come to consider the defence contention that the Minister’sdirection is invalid. Sub-sections (1) and (2) of Section 440a of theCriminal Procedure Code as originally enacted read as follows :—
“ (1) In the following cases, that is to say—
(а)in the case of any offence "under Section 120 of the Penal Code(hereinafter, unless the context otherwise implies, referred to as‘ sedition ’) ;
(б)in the case of any other offence which by reason of civil com-motion, disturbance of public feeling, or any other similar cause, theGovernor may consider to be appropriately triable in the mannerin this section provided,
■ the Governor may, by warrant under his hand, direct that the personcharged shall be tried before the Supreme Court at Bar by threeJudges Without a Jury.:
(2) A trial under this section may be held either upon indictment orupon information exhibited by the Attorney-General and the limitationsof Section 385 shall not apply to any information so exhibited. ”By a proclamation issued by the Governor on the 18th September,1947, in pursuance of powers vested in him by Section 88 (1) of theCeyf.on (Constitution) Order-in-Council, 1946, the words “ Minister ofJustice ” were substituted for the word “ Governor ” in Section 440a (1)and the words “ by warrant under his hand ” were omitted.
Under the law as it stood prior to the enactment of Section 440aa person appearing before the Supreme Court to answer a charge allegedin an indictment or information filed by the Attorney-General wasentitled to a trial by jury. Where the charge was contained in anindictment he was entitled to notice of the evidence against him and anopportunity of dealing with that evidence before his committal for trial.While he did not have this latter right where the charge was containedin an information, the Attorney-General’s right to exhibit informationswas a very limited one. As we have already stated, by reason of theprovisions of Section 385 he coulfl do so only for purposes for which theAttorney-General of England could exhibit informations on behalf of thoCrown in the High Court and only for offences not punishable by death orby rigorous imprisonment for three years or upwards. Section 440a madea fundamental change in the law in that it empowered the Governor,and now the Minister of Justice, to take away from an accused personappearing before the Supreme Court for trial on indictment or informationboth his right to a trial by jury and his right not to be tried summarily
The Queen v, (fuiutwardene
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nnrt without prior notice of the evidence against him for any offencepunishable by death or by rigorous imprisonment for three years orupwards. Mr. Pritt contends that what purports to be a direction madeby the Minister under this section is not a valid direction, and thattherefore the defendant is not deprived of her right to a trial by juryin the event of the information not being quashed.
The Attorney-General raises an objection to our considering thiscontention. His submissions in support of his objection he has formulated,both orally and in writing, in the following terms :—
“ 1. The direction under Section 440a of the Criminal Procedure Codeis the sole authority for the trial of the defendant by three Judgeswithout a Jury. The Judges who assemble in pursuance of thatdirection have no jurisdiction to go into its validity and makeany pronouncement thereon.
Any order made without jurisdiction would be a nullity.
The direction of the Minister cannot be questioned by the defendant
in these proceedings. It can be questioned, if at all, only inappropriate proceedings to which the Minister is a party.The Minister is not a party to these proceedings.
To declare the Minister’s direction invalid or bad without giving
liim an opportunity of being heard would be a violation of therules of natural justice.
The statute provides for no appeal from the Minister’s direction.
To hear objections amounting to an appeal from the directionwould amount to the assumption of an unwarranted juris-Bdiction.
The Judges who assemble in pursuance of the Minister’s direction
can make a binding order only when they act within theirauthority. ”
Elaborating the first of these submissions the learned Attorney-Generalargued that this Bench is a tribunal whose jurisdiction is derived solelyfrom the Minister’s direction and that it has no powers other than thosegiven to it by that direction. The basis of the submission that this isnot a tribunal which has jurisdiction to adjudicate on the validity of thedirection is that it is a special tribunal created by the direction itself.It seems to us that this view is clearly erroneous. Whatever may bosaid about the soundness of the contention as regards the jurisdiction of aspecial tribunal created by a direction given by the executive, we wouldpoint out that we constitute a Bench of the Supreme Court and notsuch a tribunal. The circumstance that the Minister has purported todirect that an information “ shall be tried before the Supreme Courtat Bar by three Judges without a jury ” does not, in our opinion, havethe effoct that a bench of three Judges which assembles to hear theinformation ceases to be the Supremo Court and becomes a difforontribunal created by the Minister. After the defendant has pleaded to the
200
The Queen v. Qunavoardene
information such a bench can try it with or without a jury accordingas there is not or is a valid direction in terms of Section 440a of theCriminal Procedure Code. Obviously the Court must be satisfied thatthere is such a direction before it can dispense with a jury, and thereforemust have jurisdiction to decide that question. Indeed, the learnedAttorney-General conceded that that question must be decided, buthe contended that it must be decided by the Chief Justice upon thereceipt of the Minister’s direction, before a bench of three judges as-sembles. Once they assemble, according to the Attorney-General’sargument, they must try the information without a jury even thoughthey may be of the view that the Minister’s direction is invalid and theytherefore have no jurisdiction sc, to try it. We need say no morq, thanthat an objection to the jurisdiction of a court can be taken at any time.Moreover, such an objection “ is one which the court itself is boundto take, providing its attention is called to it ” : Upper Agrigg Assess-ment Committee v. Gartsides (Brookside Brewery), Ltd.1. We are unableto accept the contention that this Bench cannot adjudicate on thevalidity of the direction.
The proposition that any order made without jurisdiction would bea nullity is, of course, unexceptionable ; but nothing would seem toflow from it in view of our decision on the first submission.
Many cases were cited by the Attorney-General as supporting thethird submission, that the validity of the Minister’s direction cannotbe questioned except in proceedings to which the Minister is a party.But they were all cases in which a party asked for relief against a Minister ;such as an application for a writ of habeas corpus or an action for damagesfor false imprisonment where it was alleged that a person was detainedupon an illegal order by a Minister, or an action in respect of propertyalleged to have been illegally requisitioned by a Minister. No reliefis claimed by or against the Minister of Justice in these proceedings,and a decision of the issue raised as to the validity of his direction cannotresult in an order granting or refusing any relief. The fourth submission,too, is based upon what seems to us the unwarranted assumption that theMinister has such an interest as a party litigant would have in defendingthe validity of his direction. We do not agree that there is any require-ment of the rules of natural justice that he should have an opportunity ofbeing heard in support of the direction given by him.
In regard to the fifth submission it is enough to say that the defencecontention, that there is no valid direction under Section 440a andthis Court therefore has no jurisdiction to try the information withouta jury, does not amount to an appeal from the direction that the Ministerhas purported to make under that section. The Court is not invitedto affirm, vary or set aside the direction, but to try the informationwith a jury on the ground that it has no power to try it without a jury.In view of what has already been said the sixth submission calls for nocomment.•
1 (1945) 1 AU England Reports 338 at 340.
The Queen v. Qunawardene
207
We are therefore of the view that we have jurisdiction to adjudicateupon the question whether the Minister’s direction is a valid direction'in the sense that it complied with the requirements of Section 440a.of the Criminal Procedure Code. The relevant part of the section reads-as follows:—
“ (1) In the following cases, that is to say—
(a)….
(h) in the case of any other offence which by reason of civil com-motion, disturbance of public feeling, or any other similar cause,the Minister of Justice may direct that the person charged shall betried before the Supreme Court at Bar by three Judges without aJury. ”
The decision of this matter raises a difficult point of interpretation1..An illustration of this difficulty is perhaps provided by the fact that themembers of this Court are themselves not unanimous in their view as towhat the correct interpretation is. Learned Counsel for the defendantcontends, in effect, that the sub-section should be read in the same senseas if it had been “ in the case of any other offence, in the event of anycivil commotion, disturbance of public feeling, or any other similar cause,the Minister of Justice may consider whether it is appropriately triable…. and may direct ….”. Upon this view of the
matter the contention is that while the Minister’s consideration of theappropriateness of the matter being tried by three judges without ajury is not justiciable in the absence of bad faith, which is not suggestedin the present matter, the element of civil commotion, disturbance ofpublic feeling or any other similar cause involves a question of factwhich is objective and is determinable by the Court in the same way asany other question of fact comes to be determined. In other words,unless the Court is satisfied that there is, in fact, a civil commotion, dis-turbance of public feeling, and so on, there is an absence of the conditionprecedent to the exercise by the Minister of his power to consider theappropriateness of the method of trial contemplated by the sub-section'.It is perhaps convenient at this point to advert to what in our viewwe are called upon to determine. It is not, in our opinion, for us toconsider the desirability or otherwise of this particular provision of thela£, which was introduced in 1915 in a year of stress, being retainedupon the Statute Book. That is a question of policy with which thisCourt is not concerned. It is not, in our opinion, for this Court to con-sider the desirability or wisdom of the power retained in the StatuteBook being invoked by the executive. It is not for us to consider whetherin the public interest it is desirable'that there should be such a limitationupon the Minister’s power as is contended for by the defendant. In ourview the task which devolves upon us is a narrower one—the arid taskof determining the meaning of the words themselves.
In this connection it is perhaps permissible to point out, as the matterwas adverted to in the course of his argument by learned counsel for thedefendant, that when this Court at an earlier stage of these proceedings-
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The Queen v. Qvnawardene
was considering an application by the defendant that she should besupplied by the Attorney-General with a copy of the evidence that it wasproposed to adduce, what it decided was that in its view it had no powerto make such an order. The question as to whether or nob it was fairthat such information should be provided to the defence did not arisefor the consideration of the Court and it was not therefore necessaryto express a view upon it.
We have been referred in the course of the argument to many exampleswhere the legislature has provided precisely the type of safeguard whichis now contended for by the defendant, but it would seem that littleassistance is to be derived from that fact for the reason that it is indubit-ably within the power of the legislature so to provide and it may wellbe—although that must always remain eminently a matter of opinion—that .such a safeguard has much to be said in its favour. The questionbefore us, however, is whether in this particular piece of legislationthat particular safeguard has been provided.
It seems to the majority of the Court that to construe the words“ in the case of any other offence which by reason of …. dis-
turbance of public feeling …. the Minister of Justice mayconsider to be appropriately triable . . . . ” as if they read“ in the case of any other offence, in the event of there being a disturbanceof public feeling …. the Minister of Justice may considerwhether ….” would be to step into the shoes of the legislature
and to introduce a limitation upon the Minister’s exercise of his powerto give a direction which, however desirable or undesirable in theabstract that may appear to be, is not provided by the language of thesub-section..
Not only would it seem not to be difficult, as a mere matter of drafting,for the legislature, had they wished to do so, to have imposed an objectivecondition precedent to the exercise of the Minister’s power, but in^ factthey have done exactly that in sub-section (a) of the same section wherethey state “ in the case of any offence under Section 120 of the Penal
Codethe Minister of Justice may direct ….”.
Surely if the legislature had intended in sub-section (b) to impose asimilar objective condition precedent it would be reasonable to expectthat they would have used the same formula.
It is in the light of these considerations that the majority of tho Courtconsider that one must seek another construction of the words in question.It seems to them that there is only a distinction in literary style betweensaying “ in the case of any other offence which by reason of disturbanceof public feeling …. the Minister of Justice may considerto be appropriately triable . . . . ” and “ in the case of anyother offence which the Minister of Justice may consider by reason ofdisturbance of public feeling to be appropriately triable”. The meaningin both cases, in their view, would be the same.
It is, no doubt, the position of the Crown, on this part of the case,that the words “ by reason of disturbance of public feeling ….”
are merely directive and constitute nothing more than guidance to the
The Queen v. Gunawardene
200-
Minister as to the matters on which he should satisfy himself beforeproceeding to consider whether any particular case is appropriatelytriable in the manner provided in this sub-section and impose no justici-able limitation upon his exercise of the power to give a direction. Thecase of Liversidge v. Anderson1 was cited in support of that position.It is perhaps unnecessary to consider in detail the reasons given by themajority of the Law Lords in that case for the reason that, for our presentpurposes, the majority decision in that case is summarised in a laterca^p in the Privy Council by Lord Radcliife (Nakkuda Ali v. M. F. deS. Jayaralne2). Lord RadclifFe says at page 461 :
“ It would be impossible to consider the significance of such wordsas * Where the Controller has reasonable grounds to believe …. ’
without taking into account the decision of the House of Lords inLiversidge v. Anderson. That decision related to a claim for damagesfor false imprisonment, the imprisonment having been brought aboutby an order made by the Home Secretary under the Defence (General)Regulations, 1939, Regulation 18b, of the United Kingdom. It wasnot a case that …. but it did directly involve a question asto the meaning of the words ' If the Secretary of State has reasonablecause to believe any person to be of hostile origin or associations….’ which appeared at the opening of the Regulation in
question. And the decision of the majority of the House did lay downthat those words in that context meant no more than that the Secretaryof State had honestly to suppose that he had reasonable cause to believethe required thing. On that basis, granted good faith, the makerof the order appears to be the only possible judge of the conditionsof his own jurisdiction.
“ Their Lordships do not adopt a similar construction of the wordsin Regulation 62 which are now before them. Indeed it would bo avery unfortunate thing if the decision of Liversidge’s case came to beregarded as laying down any general rule as to the construction ofsuch phrases when they appear in statutory enactments. It is anauthority for the proposition that the words ‘ If A. B. has reasonablecause to believe 1 are capable of meaning ‘ If A. B. honestly thinksthat he has reasonable cause to believe ’ and that in the contextand surrounding circumstances of Defence Regulation 18b they didin fact mean just that. But the elaborate consideration which themajority of the House gave to the context and circumstances beforeadopting that construction itself shows that there is no general principlethat such words are to be so understood ; and the dissenting speechof Lord Atkin at least serves as a reminder of the many occasions whenthey have been treated as meaning ‘ if there is in fact reasonable causefor A. B. so to believe ’. After all, words such as these are commonlyfound when a legislature or law-making authority confers powers on aMinister or official. However read, they must be intended to servein some sense as a condition limiting the exercise of an otherwisearbitrary power. But if-the question whether the condition has been
* (1942) A. C. 206.'* (1950) 51 N. L. R. 457.
CIO
The Queen v. Qunateardene
satisfied is to be conclusively decided by the man who wields thepower the value of the intended restraint is in effect nothing. Nodoubt he must not exercise the power in bad faith ; but the field inwhich this kind of question arises is such that the reservation for thecase of bad faith is hardly more than a formality. ”
We would add that had it been the intention of the legislature onlyto give a direction by way of guidance to the executive authority,whether it be the Governor of the Colony as it was when the Ordinancewas originally enacted or the Minister of Justice as it stands upon thestatute book today, this result could conveniently and suitably have beenarrived at by instructions from the Secretary of State in the first caseor an indication of Cabinet policy in the second. In that event therewould be no need, nor would it seem to be appropriate, to place such amatter upon the statute book. Once it is so placed, it seems to us thatin the words of Lord Radcliffe it “ must be intended to serve in somesense as a condition limiting the exercise of an otherwise arbitrarypower ”.
It is perhaps relevant to consider at this stage whether there are present,in the matter now before us the elements-which appear to have inclinedthe majority of the learned Law Lords in the Liversidge case to give theirhighly specialised interpretation. On a perusal of the speeches of LordMaugham, Lord Macmillan, Lord Wright ancL Lord Romer, it appearsthat five matters came under their consideration on this head : first,that there was in existence what might'be termed an “ emergency ”in the sense that the country was engaged in a desperate war, it beingborne in mind that the relevant matters that were alleged againstMr. Liversidge took place in the year, 1940 ; secondly, that the informa-tion which would lead a Secretary of State to come to his conclusion inconsidering any case of detention under the Defence Regulation 18bmust necessarily be of a highly confidential nature which it would beagainst the public interest to disclose even if the case were heard incamera; third, the unsuitability for the consideration by a courtof the particular question or questions involved in coming to a conclusionwhether a detention in any particular case was justified.
These may perhaps be said to be the principal matters which affectedthe minds of their Lordships although in two of the speeches referenceis made to the fact that the Home Minister is a high officer of state andmust therefore be presumed to exercise his responsible functions withdiscretion and that in any event there is the further safeguard of hishaving to answer for his actions in Parliament.
As to the last two considerations they are, in our opinion, disposed ofby Lord Radcliffe in the passage to which we have already referred■where he says, “ After all, words such as these are commonly foundwhen a legislature or law-making authority confers powers on a Ministeror official. However read, they must be intended to serve in somesense as a condition limiting the exeroise ….”.
The Queen v. Gunawardene
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With regard to the other three matters we are of the opinion thatthere is no material before us and nothing has been said in the courseof the arguments to lead os to suppose that the consideration of whetheror not there is reasonable cause for considering that public feeling isdisturbed would involve the examination of information of a highlyconfidential nature or is a topic which would be unsuitable for a Court toadjudicate upon. Moreover, an emergency, in the sense of the wordas it existed, in England in 1040, would happily not seem to be presentin Ceylon today.
We are therefore of the opinion that before the Minister proceedsto the consideration of the question as to whether a matter is appro-priately triable by three judges without a jury there 'must be reasonablegrounds for his belief that there is a disturbance of public feeling (whichwould seem to be the relevant head in the present case). The majority-of the Court holds that the sole test to be applied in this matter is whether,in the opinion of the Court, a reasonable man occupying the seat of theMinister could reasonably come to the conclusion that there existed adisturbance of public feeling. While this test, which the majority of ussuggest is the apposite one, is less exacting than that contended forby the defence and which commends itself to one member of this Court,it is, in our view, none the less justiciable, for as stated by Lord Atkinin his dissenting speech in the Liversidge case at page 228 la passagewhich would appear to be quite non-controversial) it has been “ acceptedin innumerable legal decisions for many generations, that ‘ reasonablecause ’ for a belief when the subject of legal dispute has been alwaystreated as an objective fact to be proved by one or other party and to bedetermined by the appropriate tribunal
Although for reasons which will subsequently appear it may not beof practical importance in the present case, some argument was addressedto us on the question of who should begin when the question of dis-turbance or no disturbance comes to be tested. It seems to the majorityof us that whichever test is applied, either that which the majority of theCourt favour or that contended for by the defence, the position would bethe same. The majority of us consider that the principle “ omnia■praesumunlur rite ease acta ” is applicable to the Minister’s order in thiscase. The order is on the face of it good in that it is signed by theappropriate person, invokes the appropriate section and refers to a powerwhich, in a proper case, can appropriately be exercised. If then thequestion as to which party has to begin does arise—and by reason ofwhat we think is the correct approach to the matter it does not arise—•the presumption in question would have the effect that, in the absenceof challenge, there existed either a factual disturbance of public feelingaccording to one test or reasonable grounds for a reasonable Ministerto believe that there was a disturbance of public foiling according to theother and that he had considered whether the case was appropriatelytriable in the manner provided for in the section. In that view of thematter it would seem that it is for the defendant to begin.
From the practical point of view we consider that it is reasonableto limit our investigation to the question of “ disturbance of publicfeeling or any other similar cause ” for the reason that there is no material
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The Queen «. OunautOtjene
before us, and indeed i < has not been contended, that there was inexistence either a civil commotion or reasonable ground for supposing thatthere was a civil commotion. What, then, is the meaning of the phrase“ disturbance of public feeling ” ? There are no doubt disturbances ofpublic feeling which are manifested—by, for instance, public meetings,organized demonstrations of protest, processions, and so on—but it seemsto us that the phrase is not limited to cases where there is an open mani-festation of a disturbance of public feeling. In our view one of the testswhich could, be applied to determine whether or not a disturbance ofpublic feeling exists would be to consider the reactions to the matter inquestion of the ordinary ciiizen in various walks of life. To take ahomely example, if the normal private- citizen on his lawful occasionstravelling by bullock cart, bus, train or motor car, as the case may be,were to say to himself or think to himself “ What is the country comingto ? ”, that should surely be regarded as indicating the oxistence of adisturbance of public feeling. To say, for example, of the Prime Ministerof a country engaged in war that he is in the pay of the enemy wouldobviously give rise in the mind and heart of the ordinary citizen to thekind of anxiety to which we have just referred. In the present mattera fundamental question for our consideration is whether an allegation,true or false, in a newspaper of any considerable circulation tha; theperson who has been selected by the Sovereign to fill the position ofGovernor-General of Ceylon is engaged in swindles on an internationalscale and that a public trial of the gang of which ho is a member isimperative has caused (on one view) or could reasonably be considorod: o have caused (on the other) a disturbance of public feeling.
It seems to all of us that applying the test which commends itselfto the majority of the Court, that the question as to whether there wasreasonable ground for the belief that there existed a disturbance of publicfeeling can only be answered one way. We find ourselves quite unableto adopt any othor view than that to say these hard things, whetherthey be true or false, of the first Ceylonese to be appointed Governor-General of the Island, affords reasonable ground for a Minister of Stateor indeed any other reasonable person to believe that public feeling hadbeen disturbed in the sense to which we have already adverted.
.Q
Incidentally, learned counsel for the defendant submitted that thewords “ disturbance of public feeling ” should be limited to cases inwhich such disturbance is of a nature that would make a trial by juryunsuitable. In our opinion there is no substance in that contentionfor the reason that the very matter which the Minister has to consideria whether tho ease in question can appropriately bo tried without a jury.If the words are subject to the limitation suggested by learned counselfor the defendant, then there would be nothing left for tho Minister toconsider and the words “Which …. the Minister of Justicemay consider to be appropriately triable …. ” would be
meaningless.
Before examining what flows from our principal conclusion, we mustconsider two other points that were raised by learned counsel for thedefendant. First, he contended that in a case such as the present where
The Queen v. Qunawardene
213
the Minister in his direction does not refer to the matters which in-fluenced him nor to the precise head under which he regarded the matteras falling, it is impossible for this Court to determine the question whetherthe Minister was reasonably entitled to believe, when we do not knowwhat it is that he did believe. While we are not disputing that theremight be cases under other statutes in this or other countries whereBuch a difficulty might arise in view of the number and complexity ofthe various heads which a Minister might take into consideration, weffcel that in the present case no such difficulty arises for the reason thatit is clear, or seems to us; to be dear, from the very nature of the libelalleged in the information, that the appropriate head to be consideredis that relating to disturbance of public feeling. Secondly, it was conten-ded that the direction was bad in that it was unlimited as to time.Assistance for this proposition was Bought in the circumstance that inthe Liversidge case in considering the applicability of regulation 18 (b)one of the elements that the learned Law Lords took into considerationwas the fact that a terrible war was in full progress. It is no doubttrue that once the emergency, that is to say tbe war in question, hadended the need and, indeed, even the propriety of detaining personsunder that regulation would have passed away. Even if it would beproper for us to take such matters into account, we are of the opinionthat no considerations of that nature arise in regard to the presentmatter. The libel was published on the 1st of July, 1954 ; the infor-mation waB filed on the 5th of August and the direction was issued on the6th. The present proceedings began on the 26th October, a date whichwas some weeks later than might have been achieved were it not for thefact that a reasonable adjournment was granted to the defence to enablethe leading counsel, who is a member of the English Bar, to complywith the necessary requirements to enable him to be called to the Bar ofCeylon. We do not consider that there is any substance in the objection.Moreover any disturbance of public feeling that may have been arousedby this libel in July would, in our view, reasonably have been expectedto continue up to the present day and until such time as the questionsraised by the libel are resolved.
On the view, therefore, of the words in the section which has beenadopted by the majority of the Court, we all consider, as we have alreadystated, that the test has been satisfied. That is therefore sufficient todetermine the present matter, and we hold that the information is inorder, that the Minister’s direction is valid, and the trial mustproceed.
It only remains for us to refer to the matter of certain affidavits whichwere tendered by Counsel od either side to us at the conclusion of thearguments. It is, of course, apparent that had we adopted the con-struction contended for by the defendant and which has commendeditself to one member of this Court, the reception of evidence would,no doubt, have been relevant in determining whether or not the factualtest as to the existence of a disturbance of public feeling at the material
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Per era v. DharmatUlake
time had been satisfied. In view, however, of the opinion which Bthemajority of the Court have formed and upon which our order is based,the affidavits cease to be germane and do not require our consideration. *
(Sgd.) Alan Rose,
Chief Justice.
(Sgd.) E. H. T. Gunasekara,
Puisne Justice.
(Sgd.) M. F. S. Pulle,
Puisne Justice.
Preliminary objections overruled.
* On December 3, 1954, the Court made order acquitting the defendant on thoground that the material adduced by the Crown to establish that the defendantpublished the issue of the newspaper in question with the necessary knowledge ofits contents was insufficient to justify the Court in calling upon the defendant forher defence.—Ed.