Parliament Exercising Powers of Supreme Court
There was a drama in the National State Assembly on February 2nd when Messrs. Harold Peiris and Phillip Cooray, Editor and Associate Editor of the "Ceylon Observer," were brought up to the Bar of the House at 5 p.m. - "after giving merely two hours notice" (Mr. Navaratnam –
Chavakachcheri) to show cause why they should not be punished for "breach of Privilege." It is an event that calls for review because the occasion, in its context, demonstrated that a law passed by the N.S.A. just the day before (February 1st) has added a new threat to our liberties. Indeed, it seems to have been intended as a demonstration that the new law (certified only that very morning) has teeth in it; for, at the very beginning Prime Minister Jayawardene said "I wanted to act under this law;" and at the end of it all, he gave as one reason for imposing a fine: "we wish to show that this Bill is now a law with teeth in it… "I More anon about these matters.
The stage for the drama was prepared on the very eve of the performance. On 30th January a Bill endorsed by the Cabinet as being "urgent in the national interest" was presented to the N.S.A.
and fixed for its "second reading" for the very next day (31st January). It was a Bill to amend the parliament (Powers and Privileges) Act of 1953.
The P (PP) Act was expressly "continued in force" by the Constitution at the same time that the Constituent Assembly vested in the N.S.A. an enabling power to "exercise directly" "according to law" the judicial power of the people" in the case of matters relating to (the N.S.A.'s) powers and privileges." "According to law" in the context signified precisely according to the P (PP) Act.
The P (PP) Act has a Schedule of privilege offences which is divided into Parts A and B. The Part A offences, eleven in number were, at the time of the Constitution and right up to 31st January this year, punishab1e only by the Supreme Court. The Supreme Court was empowered to sentence upto two years rigorous imprisonment and Rs. 5,000 fine.
Part B offences, ten altogether, were made punishable both by the S.C. and by the House, as the House chose - reference once made to the S.C. being, however, irrevocable. As for punishment, the House could only order "admonition at the Bar or removal from, the precincts of the House," as well as, in the case of a Member "suspension from the service of the House" upto one month and in the case of any other person, prohibition from entering the House or its precincts upto six. months. No imprisonment, no fine!
The principle which underlay the division was manifest. Serious offences carrying imprisonment and fine were only for the S. C. – the highest court in the land – since the offences concerned Parliament. Lesser offences, carrying suitable punishments as above, could be taken up by it House itself or referred by it to the S.C.
It is always manifest that the Constitution kept it that way because the basic principle in judicial matters – set out in the very section that expressly as an exception, enabled the N.S.A. to exercise that power directly in respect of its own power and privileges – is that the N.S.A. exercises the judicial power of the people through courts and other institutions created by law.
The P (PP) Amendment Act, that is the new law which was passed on February 1st certified by the Speaker on February 2nd and applied to the "Ceylon Observer's" act of January 30th on the very day of certification (February 2nd), removed the exclusiveness of the S.C.'s powers in respect of Part A offences and vested such powers in the N.S.A. also. It was this amendment, itself certified on February 2nd, which enabled the N.S.A. to deal directly with the alleged offence of the "Observer," also on February 2nd. The N.S.A. moved that day into what for it was virgin territory or untrodden ground. Hence the need to scrutinise its actions.
By the amending law, the N.S.A. not only acquired a new power and also, in respect of its use, freed itself of certain legal fetters. The power is that of directly handling and punishing with rigorous imprisonment and Rs. 5,000 fine Part A offences. The "Obsever's" alleged offence was a Part A offence. No.8: "The publication of any defamatory statements concerning any member in respect of his conduct as a member."
As to the fetters where, as in the case of Part A offences, the matter had to go to the S.C., the procedure, though initiated by a member's complaint to the Speaker or by resolution of the House, had first to go to the Attorney General for report. It was "only if in the opinion of the A.G. there is sufficient evidence to warrant the taking of further steps," that the matter could reach the S.C. by way of an application of the A.G; The N.S.A. has freed itself of this fetter in directly handling the "Observer" matter on this occasion. It has been investigator, prosecutor and judge, as far as one can see from Hansard.
Now, during the two day debate on the amending Bill, the dangers attendant on this situation had been pointed on very sharply by Opposition speakers - both wings of the Opposition spoke strongly and voted firmly against the Bill although they knew the outcome was predetermined. Here are the prophetic words of Mr. Dharmalingam – Manipay, who pointed out that the Bill had been introduced "in indecent haste" and that:
"Members of the House of Commons or the U.K. Government do not come one morning with a Bill and ask Members to pass it without any notice, preparation or study."
"We must not forget that we are politicians. We are not judges nor are we trained to judge offences or offenders. We always think on political lines. Our thoughts are, if I may say so, clouded by politics…. We are not judges. We do not give our minds to these matters in a judicial manner. We look at these problems in a political way."
Let us look at the proceedings of February 2nd.
It all arose from a complaint of Foreign Minister Hameed that the caption of a picture "of a young man and a lady" appearing in the "Ceylon Observer" of 30th January was "defamatory of my conduct as a Member" and "damaged my reputation." He asked for an inquiry and the Speaker, declaring that "there is a prima facie case of breach of Privilege," took a motion from the Leader of the House Mr. Premadasa, that the Editor, Mr. Harold Peiris, and the Assistant Editor, Mr. Phillip Cooray, "be ordered to attend before the Assembly, at 5 p.m…. to show cause for a breach of Privilege of the N.S.A." The motion alleged that the caption to the said picture "was intended and calculated" to bring Mr. Hameed into disrepute and thereby constitutes the publication of "a defamatory Statement concerning a Member…. in respect of his conduct as a Member."
At 5 p.m. the Assembly, despite protests from Mr. Navaratnam – Chavakachcheri, formed itself into "a Committee of the whole Assembly" on Mr. Hameed's complaint. The picture referred to was of Peter Fonda and Susan St. James in a speedboat in Texas. The admittedly wrong caption read: "The President of one of the leading complexes in South Korea showing the Sri Lanka Foreign Minister, Mr. A. C. S. Hameed, around the showrooms of the industrial complex." Texas is not South Korea; a speedboat is difficult to mistake for the showroom of an industrial complex; a lady can, of course, in these days be taken for the President of an industrial complex. But Peter Fonda was, of course, not Mr. Hameed. Mr. Hameed did appear picture, also with a wrong caption.
Mr. Harold Peiris, in a prepared statement, said that at about 2.15 he learnt "that there had been a mix up of captions" and that "the very next day a correction and an apology… was inserted on the same page." He tendered his unqualified apologies.
Mr. Phillip Cooray, in a prepared statement, said that, at about 10.15 a.m. he noticed that the caption was wrong on a proof copy of page 3; that he directed a correction which he saw Sub-Editor Mr.Javasinghe make on the proof copy; that "alter the paper began printing" he discovered that the correction had not been made; that he immediately stopped the printing but about 800 copies had been printed and distributed to sellers; that he corrected "the error" in the remaining 4,000 copies; and that he brought this to the notice of the Chairman and to Mr. Peiris. He too tendered his unqualified apology.
From further material provided by Mr. Cooray it appeared that Sub-Editor Jayasinghe's instructions to correct the caption, given personally to Assistant Foreman B. D. G. Ebert, had been "overlooked."
If anything emerged it was that any culpability attached to Mr. Ebert; but the proceedings were not interrupted or postponed to summon him.
On the Chairman saying "The House has a right to ask them any relevant questions," Mr. Navaratnam asked Mr. Peiris whether he thinks that there is any truth in the allegation of an attempt to defame Mr. Hameed. Mr. Peiris replied; "No, Sir. Absolutely none. It was a bona fide error. The moment we detected it we corrected it on the run. And the following day we carried an apology."
Other members concentrated on the adequacy of the publicity given to the correction. Mr. Peiris admitted better publicity would have been given if the correction was published on page 1 instead of on page 3, the page on which the wrong caption had appeared.
When Mr. Chandrapala - Kundasale asked: "May I know who was responsible for this mess up?" Mr. Peiris replied: "The Assistant Foreman in the Works Department." He also said to the same Member that he takes "full responsibility for everything that is in the paper."
On questioning by Mr. Gamini Dissanayake, Mr. Cooray said that the "Observer" had no subscribers abroad or in foreign missions resident in Sri Lanka. "I think they are purchased mostly off the street stands."
The final questioner was Prime Minister Jayawardene himself. But just before that, a most important episode is recorded at column 1022:-
Mr. V. Dharmalingam - Manipay: "Have you read the offending clause in the Privileges Act?"
Mr. Harold Peiris: "No."
Mr. V. Dharmalingam:-
"Then what did you plead guilty to?"
Mr. Chairman: "I did not ask him whether he was guilty or not guilty."
Then, at column 1024, Mr. Amirthalingam expostulated: "We are like children trying on new clothes. We are carrying this too far. Let us bring this to an end."
Mr. J. R. Jayawardene, rising after Mr. Amirthalingam's rebuke, elicited from Mr. Peiris that foreigners who have never seen Mr. Hameed may think it is Mr. Hameed; that as a result of this mix-up of the captions there would be a wrong impression among those who did not know Mr. Hameed; that Mr. Peiris would think that this is a very serious mistake; and that Mr. Peiris now felt that they should have carried the apology on page 1.
The House then sent the Editors out and turned to "what action they think the House should take." This is the most dramatic part of the proceedings.
It should here be remembered that the allegation on which the Editors had been brought up was that "the caption …. was intended and calculated to bring. Hameed into disrepute and thereby constitutes the publication of a - defamatory statement concerning a member of the N.S.A. in respect of his conduct as a Member."
What therefore had to be proved was that the erroneous caption was intended and calculated to bring. Hameed into disrepute. The Speaker had held only that there was a prima facie case. The task of a prosecution was to prove the case. In. fact, no real effort was made to prove it.. If some Members thought that the Editors had pleaded guilty the Speaker himself had laid that mistaken thought to rest. The suspects had not been asked to plead guilty or not guilty! They had not pleaded guilty but had only admitted a bona fide error or mistake. The declarations of the Editors, whether volunteered or under questioning, were consistently directed to the issue of intention., without which on the charge or resolution itself, the errorneous caption could not constitute the publication of a defamatory statement. That precisely is the force and import of the word "there-by."
The definition of the offence of defamation in the Penal Code is as follows:-
"Whoever, by words either spoken or intended to be read, or by signs or visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation win harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."
It is clear that mens rea in the suspect is essential for the offence.
The consistent and insistent "evidence" of the Editors is that there was a "mix-up", a serious mistake", and so on, for which they took "full responsibility " and tendered unqualified apologies. There was no real effort from any quarter to prove it was other wise.
But what happened?
Mr. Premadasa introduced into his speech what can only be called a tirade against "Dinakara" and "Aththa," including a dire threat against "Aththa," when moving on behalf of Government a resolution which in the Sinhalese says more than the English version which appears in Hansard as part of his speech. He proposed that the Editors be fined Rs. 2,500 each, the fines to be paid to the Deaf and Dumb School, and a suitable apology in large type to be published on page 1 of -the "Ceylon Observer."
Mr. Amirthalingam, who followed said: "First, we have to accept that this was a bona fide error and it was corrected as soon as it was discovered on the same day. So that the element of malice or mens rea, if is it is regarded as a criminal offence, does not exist in this instance."
In our view, Mr. Amirthalingam should at this point have moved to discharge the Editors. There was no case on the charge before the House.
But Mr. Amirthalingam only thought: "That is a factor that should be taken into consideration in the punishment we think of imposing." Punishment for what? Mr. Amirthalingam accepted the position that the apology and correction has not been adequately done, as the correction as published shows a degree of negligence on the part of the Editors.
All that can be said is that the "negligence" here alleged is not part of the charge in respect of which the Editors had to show cause. Further there is no such offence in either Part A or B.
Mr. Amirthalingam suggested a fine of Rs. 1,000 each and a severe warning for, in our view, an offence not committed or for an offence not to be found in the Act.
Mr. Attanayake suggested a novel supplementary punishment, namely that the "Observer" should carry on page 1 "from tomorrow" the legend "Punishment 1" until the next punishment, from when it should add to the legend "Punishment 2." Mr. Attanayake was certainly inventive, if innocent of the relevant law.
Mr. Cyril Matthew said: "This has been purposely done by saboteurs in that institution with a view to discrediting the Government. We have no doubt about that. And we know who these saboteurs are." Mr. Matthew did not name the saboteurs but said that "if punishment is to be meted out, it has to be adequate and exemplary… salutary punishment which all newspapermen will take to heart and learn that hereafter they should not – they dare not – attack the Government in a low and unseemly manner."
We come finally to the denouement of the proceedings – Prime Minister Jayawardene's – summing up. Said he:-
"I think it is well known that the punishment should fit the crime. We do not know exactly what the crime the two suspects have committed (!) because we did not go into the details of it and
the merits of the defence (!) because they accepted in fact that they had Committed a mistake. They apologised and showed us that there was in no way malicious intent in what happened." (!)
On that finding, any judge in any court would have discharged the prisoners forthwith. If you do not know what crime the suspects have committed, then, you do not know that the suspects have committed the crime charged. In that situation, in any other court, the suspects would have been discharged forthwith. And if; in the Appeal Court, that is to say in the Supreme Court, it was found that the court appealed from "did not go into .... the merits of the defence," out would go that court's judgement! When, moreover, in the case of a charge of defamation, any
Court finds that "there was in no way malicious intent in what happened," the outcome is, because it has to be, the discharging of the suspects.
Mr. Jayawardene, it has to be stressed, was, as Prime Minister, the Chief Judge, or is it the Foreman of the Jury? In this particular court which, moreover, was sitting in judgement in its own cause. Mr. Jayawardene, it has been noted earlier, had thought it fit to say at the very outset of the proceedings; "I wanted to act under the new law and give the House a chance to acquit itself honourably not only as the Legislature, but also as a court." Mr. Jayawardene's position and authority in the N.S.A. is such – he unquestionably commands the unchallenged confidence of the 141 members of the Government Patty in the 168 strong House being their enthusiastically acclaimed Leader – that it can fairly be said that the House, or at least its overwhelming majority, would have followed his advice, recommendation and judgement. So, it is vital to know what course of action he did in fact advise or recommend.
Mr. Jayawardene went on to say. "So, we can discharge them, we can commit them to jail, we
can fine them." As a statement of the powers of the N.S.A.; this was impeccable; But, in view of the introductory "So" and in view of what we have pointed to above, what he needed to say was: "We have to discharge these suspects, we cannot commit them to jail, we cannot fine them." Had he said so, Mr. Premadasa would no doubt have withdrawn his resolution re-punishment. Indeed, had he, the Prime Minister heading the Government in whose name Mr. Premadasa expressly said he was acting, said so beforehand to his Cabinet and/or Party colleagnes, we can be certain that Mr. Premadasa would not have brought forward the resolution of punishment and would have brought a resolution of discharge instead.
But what has been, has been! What Mr. Jayawardene in fact went on to say was: "As far as I can see the whole House agrees that there should be some penalty, a fine, except some Members on our side who think that there should be no punishment at all." The Members remain unknown for they have not voiced their views. All that Mr. Jayawardene had to say about them was: "So you see how democratic our party is" - a purely political remark. And anyhow, did the members have a free vote on this occasion or did party discipline apply? We may hear more about this intriguing question in the future.
And now we come to the most dramatic part of Prime Minister Jayawardene's speech:-
"But the reason why we have decided to impose a fine is that firstly, we want to give a donation to the Deaf and Blind School; secondly, we wish to show that this Bill is now a Law with teeth in it; and in future anybody who comes before the House may not escape with a fine; thirdly, the Associated Newspapers of Ceylon of which I am a shareholder, is not an indigent organisation. It has enough money to pay the fine of both these Editors. If they (i.e. these Editors) were to pay the fine I would certainly have agreed that we should not fine them. (!) But, as a shareholder, not as the Prime Minister, I will see that the organisation pays the fine."(!)
The Associated Newspapers of Ceylon, let us remember, are under the control of the State. The Minister responsible for their functioning is none other than the Prime Minister, namely Mr. Jayawardene. The Chairman of the Associated Newspapers of Ceylon is Mr. Jayawardene's choice. Mr. Jayawardene in his private capacity is also a shareholder of the A.N.C. Mr. Jayawardene leads the judging of the Editors of one of the A.N.C. newspapers, the "Ceylon Observer," by the N.S.A.: And Mr. Jayawardene the judge, having first told his fellow-judges of the N.S.A. – most of whom are his political followers among whom some think there should be no punishment at all – that if the Editors would have to pay the fine he would certainly have agreed that we should not fine them, proceeds to assure his fellow-judges that Mr. Jayawardene, the Share-holder of the A.N.C., and not Mr. Jayawardene the Prime Minister – will see to it that the organisation — and not the Editors – pays the fine!
What, one wonders, would Mr. Jayawardene the politician and his fellow-politicians in the
N.S.A. – not to mention the world outside – have to say if a judge in a regular court, sitting with other judges, was found to say to them when discussing whether to fine a person who had been brought to show cause before them, that though he was against imposing a fine on the person before them if that person had to pay the fine himself, he would in his private capacity see to it that the employer of the person before them pays the fine, and therefore they could fine him! We wonder; but we must be permitted to say that, for ourselves, we would, for one thing, be shocked, and, for another, we would be inclined to the view that the question of the suitability of that judge to continue to bold his post would come into issue in one's mind. Perhaps we should all remind ourselves that the stain of punishment attaches to the person punished, and not to the person who may come forward to pay or help to pay the fine imposed as punishment. It is Mr. Harold Pieris and Mr. Phillip Cooray who have been fined - and not the Associated Newspapers of Ceylon or that Company's shareholders, one of whom Mr. Jayawardene himself informs us is himself. And what a powerful or influential shareholder it must be who can give such an assurance. And what a Board of Directors it must be that can remember the shareholder and forget the Prime Minister when the request to pay the Editor's fine is made.
Be that as it may, Mr. Jayawardene went on to say: "We would like this decision to be unanimous. Therefore, we are accepting the suggestion of the Hon. Leader of the Opposition that these two Editors should be fined Rs. 1,000 each, to see that this House in this capacity, on the first occasion, acts judicially and magnanimously."
"We" here is obviously the Government!
Mr. Premadasa accepted Mr. Jayawardene's amendment. The Assembly resumed. The amended resolution was passed Messrs Peins and Cooray were brought back to the bar, informed of the decision and sent away. The N.S.A. resumed its interrupted proceedings on the Special Presidential Commission of Inquiry Bill.
We doubt not that the Associated Newspapers of Ceylon paid the Rs. 2,000 to the Deaf and Blind School "before February 6th."
What is most noteworthy about the N.S.A.'s proceedings was that none of the problems concerning the defamation question, which we have indicated above, were discussed at any stage. Not even whether the prima facie case found by the Speaker was proved by what was elicited in the proceedings. What we have to observe is that such a thing could never have happened if this matter had to be taken to the S.C. as under the unamended P (PP) Act or had been chosen to be taken to the S.C. as should still have been done under the amended Act.
Such a procedure would have brought in the Attorney General, whose opinion whether "there is sufficient evidence to warrant the taking of further steps under the Act" would have been binding on the N.S.A. Even if, on reference to him, he did rule that there was sufficient evidence, that would not have concluded the question of proof of the commission of the offence. The whole question would have remained open for consideration in and by the S.C., which would of course have had the assistance of Counsel for both the State and the party showing cause. Counsel were of course conspicuous by their absence in the proceedings on this occasion.
That these were wise and necessary precautions and procedures was signally proved in the only case that did reach the S.C. in the whole history of the P (PP) Act. That was the celebrated case of the Attorney General and (1) E. P. Samarakkody (M.P. for Dehiowita) and (2) W. Dahanayake (M.P. for Galle). It was decided on December 2nd, 1955 and concerned an occurrence in the Chamber of the House of Representatives on April 6th, 1955. The charges were "disrespectful conduct in the precincts of the House" and "creating a disturbance in the Chamber while the House was sitting knowing or having reasonable grounds to believe that the proceedings of the said House were or likely to be interrupted." Mr. Samarakkody was charged as the principal and Mr. Dahanayake as the abettor. The offences were under Part E.
Now the case had come before the S.C. only because the A.G. was satisfied that there was a case and that it was a matter in which the S.C. had jurisdiction. At the bearing, the objection was taken that the conduct of Messrs. Samarakkody and Dahanayake; even if it was disrespectful, was conduct which fell within the sections of the P (PP) Act which protected the freedom of speech, debate and proceedings in the House, of Members, and the protection of Members from civil or criminal proceedings, arrest, imprisonment or damages in respect of anything said in the House, etc., and therefore within the exclusive jurisdiction of the House. The application of the A.G. was dismissed. Incidentally, Government did not seek to take up the matter in the House.
The point we are making is that recourse to the S.C. which would have been obligatory in this case before the amendment that was certified on the very day of complaint, would have avoided at least the situation of unrepresented suspects who, it emerged in the preceedings had not even read the offending- clause in the Act, being punished without even the merits of their defence being gone into and the legal position being seriously examined. It just could not have happened.
We may add that even if, instead of resorting to the procedure for taking the matter to the S.C., the procedure of having a Select Committee, which was suggested during the proceedings might have ensured what may be termed the better protection of those called on to show cause and also a better mode of investigation and determination of the offence alleged.
We do not think it likely that the proceedings of February 2nd will be regarded as a model for the future. We hope that some better model will emerge, if the House indeed have recourse to the powers it vested in itself by an amendment "urgent in the national interest."
It is solid law, and also good sense, that if an offence charged is not proved, the man charged cannot be punished for that offence; still less for what is not an offence under the relevant law.
The question of appropriate procedures in these matters is now a question, not only for the N.S.A. and its Members but also for the public at large. That is part of freedom, liberty – and democracy.
February 1978
