Legal Services and Laws of Sri Lanka
SLR - 1978-79-80 Vol.1, Page No - 339
SAMERAWICKRAME, A. C.J., THAMOTHERAM, J., ISMAIL, J.,
WEERARATNE J. AND SHARVANANDA, J.
S.C. APPLICATION No. 1 OF 1980
12, 13, 14 AND 15 MAY, 1980
Parliament (Powers and Privileges) Act Cap 383 as amended by Law No. 5 of 1978, section 23 - Articles 131 and 169(16) ofthe
Constitution -Defamatory Statements reflecting on the proceedings and character of the National State Assembly.
The National State Assembly had punished two editors in the Ceylon Observer case for publishing a photograph withacaption
which it was alleged was intended and calculated to bring Mr. A. C. S. Hameed, Minister ofForeignAffairsintodisrepute
and this constituted a defamatory statement reflecting on the proceedings of and character of theNationalStateAssembly.
Offences specified in part A of the Schedule to the Parliament (Powers & Privileges) Act were originally punishableonlyby
the Supreme Court and the National State Assembly.TherespondentwroteanarticlepublishedintheSunwhereinhe
criticized the decision and stated that the matter should have been referred as in the past toaSelectCommitteeofthe
There is an area of permissible criticism and comment and it is only if a person passes outside its bounds thathewillbe
What arises for consideration of the Court is whether, in expressing his arguments and views, be they correctorincorrect,
the respondent has kept within the bounds of proper criticism or not.
A statement that some course other than that which was followed should have been followed does notbyitselfreflectupon
the House. The respondent made a point of the fact that the two editors were given only two hours to appear before theHouse
and defend themselves. This offended natural justice because the right to be heardanddefendoneselfwouldbeillusory
without time to prepare a defence and knowledge of the case to be met. What is sufficient notice will vary with the factsas
will the details which must be given of the case to be met. On the facts available, the respondent was entitled tomakethe
point he did. The comment of the respondent was that the House proceeded toconsiderthequestionofpunishmentwithout
knowing exactly what crime the two suspects had committed. Such a comment will apply equally to some cases tried inacourt
and is not by itself a reflection on the House. The Order that the fine should be paid to the Ceylon DeafandBlindSchool
was as an illegal Order. It was an illegal Order but at most a technical irregularity.
The entire effect of the allegations must no doubt be considered but it does notappearfairtotaketogetheronlythe
conclusions arrived at by the respondent apart from his reasoning. An innuendo can be relied on but it must besupportedon
the facts. The respondent will be entitled to the benefits of any reasonable doubt.
Cases referred to:
(1) Ambard v. Attorney-General for Trinidad and Tobago 1936 AC 322, 335
(2) Stevenson v. United Road Transport Union 1977 2 All ER 942, 951 per Buckley L. J.
(3) S. v. Van Niekerk (1970) 3 SALR 655
(4) R. v. Odhams Press Ltd. 1957 1 QB 73
(5) R. v. Griffith 1957 2 QB 192
APPLICATION under s.23 of the Parliament (Powers and Privileges) Act.
S. Pasupathy A.G. with S. Ratnapala, S.C. and G. K. R. Wijewardena, S.C. for petitioner.
H. L. de Silva with D. Fernando, S. Wickremasinghe, K Kandasamy, Dr. N. Tiruchelvam, S. Rudirarnoorthy, JC.T.Kotelawala
and P. S. H. M. Reeza for respondent.
June 25, 1980
SAMERAWICKRAME, A. C.J.
The Attorney-General made this application under section 23 of the Parliamentary (Powers andPrivileges)Act,Chapter383
read with Articles 131 and 169(16) of the Constitution to this Court to dealwiththerespondentforcertainstatements
published by him which he alleged were defamatory, reflecting on the proceedingsoftheNationalStateAssemblyon2nd
February, 1978 and on the character of that body. It would appear that offences specified in part A of theScheduletothe
Parliamentary (Powers and Privileges) Act, were originally punishable only by this Court, but by anAmendmentmadebyLaw
No. 5 of 1978, all offences specified in the Schedule were madepunishablebothbythisCourtandtheNationalState
Assembly. The respondent published in issues of the "Sun" newspaperof27.2.78,28.2.78,1.3.78and6.3.78a"Special
Commentary" in four parts under the caption "Parliamentary Privilege", commenting on the change inthelawandthefirst
case dealt with by the National State Assembly the day after the law was enactedreferredtointheproceedingsasthe
"Ceylon Observer case", in which two editors were dealt with for publishing in respect of a photograph acaptiondefamatory
of the Minister of Foreign Affairs, Mr. A. C. S. Hameed. The Attorney-General set out several statements from thelastpart
of the "Special Commentary" published by the respondent which dealt with the said "CeylonObservercase"andstatedthat
these statements directly or indirectly alleged that the National State Assembly, in the course of dealing withthe"Ceylon
Observer case" had violated the rule of natural justice,erredonquestionsoflaw,givenuntenablereasonsforthe
decisions, acted in ignorance of the law and made an illegal order. He averred that these statements by themselves andtaken
with other statements in the said "Commentary" imputed that the National StateAssemblywasincompetentandunsuitedto
exercise any judicial power relating to its own privileges which was vested in the Assembly by the Constitution.
Paragraph 7 of Schedule A sets out the act which constitutes the offence alleged to have beencommittedbytherespondent
"The publication of any defamatory statement reflecting on the proceedings and character of the House."
The offence of breach of privilege of Parliament is analogus to the offence of Contempt of Court. Each ofthemismadean
offence because of the importance in the public interest that the proceedings of Parliament orofaCourtshouldnotbe
impeded or obstructed in any way. Erskine May "Parliamentary Practice" 19th Edition, p. 144 states:
"in 1701 the House of Commons resolved that to print or publish any books or libels reflectingontheproceedingsofthe
House is a high violation of the rights and privileges of the House, and indignities offered to the House by words spokenor
writings published reflecting on its character or proceedings have beenconstantlypunishedbyboththeLordsandthe
Commons upon the principle that such acts tend to obstruct the House in the performance oftheirfunctionsbydiminishing
the respect due to them."
It is clear that where a case is concluded, a law proposed or passed or proceedings of Parliament take place, thecase,the
law and the proceedings are matters of public interest and may be the subjectoffaircomment,orpropercriticism.In
respect of a case concluded in a Court the classic statement of a law is contained in a dictum of LordAtkininAmbardv.
Attorney-General for Trinidad and Tobago, (1) -
"But whether the authority and position of an individual Judge, or the administration of justice is concerned,nowrongis
committed by any member of the public who exercises the ordinary right of criticising, in good faith, in privateorpublic,
the public act done in the seat of justice. The path of criticism is a public waythewrong-headedarepermittedtoerr
therein : provided that members ofthepublicabstainfromimputingimpropermotivestothosetakingpartinthe
administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting toimpair
the administration of justice, they are immune."
The report of the Committee of Privileges of the House of Commons dated 16th June, 1964 contains the following paragraph :
"Your Committee recognises that it is the duty of the House to deal with such reflections upon Members as tend, or maytend,
to undermine public respect for and confidence in the House itself as an institution. But they think that when the effectof
particular imputations is under consideration, regard must be had to theimportanceofpreservingfreedomofspeechin
matters of public controversy and also, incasesofambiguity,totheintentionofthespeaker.Itseemstothem
particularly important that the Law of Parliamentary Privilege should not, except in the clearest case, be invoked soasto
inhibit or discourage the formation and free expression of opinion outside the House by Members equally withothercitizens
in relation to the conduct of the affairs of the nation."
It is clear, therefore, that there is an area of permissible criticism and comment and thatitisonlyifapersonhas
passed outside its bounds that he will be liable. In the report of the Committee ofPrivilegesof14thJune,1964there
appears the following:
"The question is whether (a) there has been a Contempt of the House inthe sense that disgrace orignominyhasbeencast
upon it as an institution, or (b) it has been brought into disrepute."
It is not the case of the Attorney-General that the Respondent has alleged malice, lack of impartialityorimpropermotive
in the National State Assembly or its Members. The complaint made by him appears to be that the Respondenthasgonebeyond
the limits of permissible criticism and has made statements which have brought the House into disrepute or are calculatedto
lower it in the estimation of right thinking members of society. We do not have to consider whether theargumentsorviews
expressed by the respondent are correct or incorrect: what arisesforourconsiderationiswhether,inexpressinghis
arguments and views, be they correct or incorrect, he has kept within the bounds of proper criticism or not.
It is necessary to consider the matters complained of and the submissions made in respect of them. The. respondent statesin
the article that the past practice of referring complaints of breach of privilege to a Select Committee of the House wasnot
followed in the case of the two editors that the matter should have been referred to a Select Committeeforconsideration
and report as to whether there was a breach of privilege or not and that the advice of the Attorney-General should havebeen
sought. The respondent is entitled to express this view and no exception can be taken to his doing soevenbypersons,if
any, who take the view that the ordinary practice need not invariably be followed. Further,astatementthatsomecourse
other than that which was followed should have been followed does not by itself reflect upon the House. Therespondentnext
states that the motion passed by the National State Assembly resolving that the editors should be called upon toshowcause
stated that the caption to the picturewasintendedandcalculatedtobringMr.Hameedintodisreputeandthereby
constituted a defamatory statement. He says that this appears to be a mistake and that what the motion shouldhavesaidis
that Mr. A. C. S. Hameed had made a complaint to this effect. He added, "otherwiseitwouldmeanthattheAssemblyhad
prejudged the issue without hearing the defence." The respondent was not saying that the Assembly had in factprejudgedthe
issue he was only saying that the statement in the motion that the caption was intended and calculated tobringMr.Hameed
into disrepute might suggest this. In other words, he was only dealing with the propriety of the wording of themotion.The
suggestion of the respondent that the motion should have said that Mr. Hameed had made a complaint to thiseffectdoesnot
take into account the fact that the Speaker had ruled that there was a prima facie case of breach of privilege.Accordingly,
it may have been better if the motion stated not that Mr. Hameed had made a complaint but that it appeared thatthecaption
to the picture was intended and calculated to bring Mr. Hameed into disrepute. The point taken by therespondentinregard
to wording of the motion is rather technical as it would be apparent to the parties noticed aswellastoanyreasonable
person reading the motion that as the parties noticed were called upon to show cause, this matter of whether the captionwas
or was not defamatory was lefropen for decision.
The National State Assembly decided at 3 p.m. on the 2nd February, 1978 to summon the two editors toshowcauseandfixed
the time for their appearing before the Bar at the National State Assembly at 5 p.m. of the same day.Therespondentmakes
a point that a basic principle of natural justice demands that a person accused of anoffenceshouldbegivenadequate
opportunity to study the charge, get advice and equip himself to meet the charge before he shows cause andthattheperiod
of less than 2 hours was not sufficient. The principle of natural justice referred tobytherespondenthasbeenstated
in textbooks on the subject. "Natural Justice" by G.A Flick, p. 25 there appears -
" In the absence of some statutory or regulatory requirement specifyingthe amountoftimewhichshouldbegivenan
administrative notice must be served at a time sufficiently prior to the hearing to enable a party to preparehiscaseand
to answer the case against him. That notice which will satisfy these requirements will obviously vary with the facts ofeach
particular case but will involve a consideration of such factors as the need to secure legal representation, theabilityof
an unrepresented party to appreciate what action he must take to effectively answer the case against him, thecomplexityof
the legal or policy issues involved, the amount of time needed to analyse the factual grounds of thecasetobemet,the
availability of evidence,the need for prompt action, and so on."
In "Natural Justice" by Paul Jackson, page 63-
" The right to be heard and defend oneself is illusory without time to prepare a defence and knowledgeofthecasetobe
met. What is sufficient notice will vary with the facts as will the details which must be given of the case to be met."
" A case may be of so uncomplex a character and the issues may be sowell-knowntoallpartiesconcernedthatnomore
particular notice of any charge may be required, an opportunity for the party of whom complaint is madetostatehiscase
being sufficient." Stevenson v. United Road Transport Union (2).
As indicated in the above statements of the law the amount of time required will vary with the circumstancesofeachcase.
It will depend to some extent on the resourcesavailabletoapartynoticed.Forexample,itmaywellbethatan
organisation like Lake House which publishes a number of newspapers have a panel of lawyers undergeneralretainercapable
of advising at short notice on matters such as defamation, breach of copyright or breach of privilege which are mattersthat
normally arise in respect of the publication of newspapers but there is no data or information that there issuchapanel.
On the facts available, the respondent was entitled to make the point he did. The respondent further went on tostatethe
one member suggested that the matter be put off but that his suggestion did not commenditselftotheHouseandnothing
came. of it. It has been pointed out by the Attorney-General that when this matterwasunderdiscussion,thethenPrime
Minister said" if the accused I do not know whether they should be called "accused"or"suspects",itmightbeless
harmful to call them "offenders" if the offenders want time, certainly we will consider it. " He submitted thatinfairness
the respondent should have mentioned this willingness of the then Prime Minister, which must be taken to havereflectedthe
will of the House, to consider giving time if the editors asked for it. It was submitted on behalfoftherespondentthat
this statement by the then Prime Minister was made in the absence of the editors and that when theeditorsappearedbefore
the National State Assembly, it was not repeated to them nor were theyaskedwhethertheywantedtime.Itwasfurther
contended that if they asked for time, what else could the House have done but consider it andthatthestatementofthe
then Prime Minister amounted to no more than a statement of the obvious and that the respondent was undernoobligationto
refer to it. On consideration, we do not think that even on the view of the matter less favourable tohimtheomissionof
the respondent to refer to the statement of the then Prime Minister takes hiscommentoutoftheboundsofpermissible
comment or constitutes a departure from the exercise of a legitimate right to comment. What was more importantandrelevant
was that the editors did not ask for time and that one of them said that he had consulted a lawyer and thattheybothcame
with prepared statements. The respondent's article, however, does mention these facts. There appears in thick type
'It must be mentioned that the two persons on whom notice had been served did not ask for an adjournment and that one of
them said he had consulted a lawyer."
Later in the article it is stated that each of the two persons read out a statement that he had brought with him.
The respondent states that mens rea or guilty mind is an essential element of the offence of the breach of privilegeandon
this basis he states that the statements made by the two editors were exculpatory and,interalia,clearlynegativedthe
existence of mens rea or the guilty mind. He further states that one of the editors who was on leave on the morning whenthe
issue of the "Observer" newspaper in question was made cannot be considered even to have made the publication. TheAttorney-
General contended that mens rea was not an ingredient of the offence of breach of privilege andthataneditorcouldnot
avoid liability by reason of want of knowledge of the error at the time of publication unless he was abletoshowthathe
had taken all due precautions against the publication of offending material. In the South African case ofS.v.VanNiekerk
(3), cited by learned Counsel for the respondent, it was held that for the commission of the offence of contempt of courtby
the publication of imputations of partiality in the Judges of theSouthAfricanCourtsanecessaryingredientwasthe
intention known as the dolus eventualis. But in R. v. Odhams Press Ltd (4) The Queen's Bench Division held that "mens rea"-
a guilty mind - was not a necessary constituent of contempt. The judgment suggested that comment likelytocauseprejudice
to a party to a' pending case may be contempt even though the person publishing it couldnotpossiblyhaveknownofthe
pending civil action or criminal proceeding. This was followed by R. v. Griffith (5), in which Lord Goddard C.J. said,
"This Court lately reviewed the decisions on this subject in R. v. Odhams Press Ltd And held that lack of knowledge of the
contents of the offending article was no defence, nor was lack of intention."
The question whether mens rea is an ingredient of the offence of breach of privilege isnotfreefromdifficultyandwe
would be disposed to express a view on it only after hearing a full argument in a case in whichthepointdirectlyarises
for decision. As we have indicated earlier, the decision of this matter does not turnonwhetheranyviewtakenbythe
respondent is correct or not. We are satisfied that the view taken by the respondentisonethatisprobablysharedby
others and is not one arbitrarily taken by him. On the basis of that view, the respondent states thatitwasdifficultto
understand how the editors were found guilty and fined Rs. 1000/ each: that such a matter required to becarefullyexamined
before decision: and that in effect the fine of Rs. 1000/that had been imposed on each of the editors was not justified.
The respondent further stated that according to Mr. J. R. Jayewardene, the House did not knowexactlywhatthecrimewas
that the two suspects had committed because the House did not go into the details of it. and the merits of the defence.Even
a Court knows less of the details of a crime and, for example, the degree of culpability of an accused whoisconvictedon
his own plea than it does where there is a trial and hears the case for the prosecution and defence and acquires aknowledge
of the full factsThe comment of the respondent that without knowing exactly what crime the two suspects hadcommittedthe
House proceeded to consider the question of punishment will apply equally to some cases triedinaCourtandisnotby
itself a reflection on the House. Towards the end of the proceedings against the editor, Mr. Jayewardene statedreasonsfor
imposing the fine that had been proposed. The respondent comments that the three reasons adduced for imposing thefinesare
untenable and cannot bear examination. If one examines the reasons in the same way, asonedoesthereasonsforafine
stated in the formal order ofaCourt, they are a little unusual. But Mr.Jayewardenewasnotformulatingreasonsfor
incorporation in aformal orderthe procedure before the House does not involve making one. As thethinkingofajudge,
particularly before the selection of theformal reasons to be adopted, theycanbeappreciated.Therespondentfurther
states that the order that the fine should be paid direct to the Ceylon Deaf andBlindSchoolappearstobeanillegal
order. A fine is payable to the State and for a Court to impose a fine and direct it to be paid elsewherewouldbeillegal
but so far as the National State Assembly is concerned, the matter is at the most atechnicalirregularityforthatbody
could have voted to donate an amount equal to the fine from State funds to the Deaf and Blind School. But in his articlethe
respondent does mention that the National State Assembly could have made a grant equal to the fine to School.
The Attorney-General submitted that the entire effect of the statements made bytherespondenttakentogethershouldbe
considered. He said that the respondent had alleged that the Househadpassedaresolutionsowordedastogivethe
impression that it had pre-judged a matterthat it had failed to give adequate time to the parties noticed to preparetheir
case before they had to appear and show cause and had thereby failed to observe a principle of natural justicethatonthe
occasion when the editors appeared it had rejected a suggestion that they should be given timethat they had misappliedthe
law and erred in finding them guiltythat the reasons givenforimposingthefineofRs.1000/-wereuntenableand
irrelevant and that the direction in regard to the payment of the fine to the School for the Deaf and Blind wasillegal.He
said that the total effect (of the allegations) was to hold uptheHousetoderisionasincompetentandincapableof
handling a matter that it had taken power to deal with.
It does appear to us that the respondent has scrutinised the report of the proceedings topickoutpointsthatcouldbe
urged against their propriety and legality and has urged all of them. In that process, he has putforwardpointswhichin
the circumstances are technical. He has failed to make an assessment of the weight that shouldbegiventoanyofthese
points in the particular matter under consideration and has failed to consider what effect any point hasinregardtothe
substance of the matter. He has thus ignored and omitted tomention considerations that may limit or modifytheeffectof
these points in arriving at the actual decision of the matter.
It is, therefore, necessary to consider whether the respondent was genuinely exercising the right of comment or wasinfact
making belittling comments and criticism of the proceedings in the House calculated to have the effect of bringing theHouse
In doing so, it is necessary for us to consider the facts and circumstances set out in the affidavit of the respondent,many
of which appear also in his article. The respondent is an Attorney-at Law, in practice for 49 years. He had been appointeda
Queen's Counsel in 1954 and at one time was Chairman of the Bar Council of Ceylon. He had also been a MemberoftheSenate
from its inception in 1947 to 1971 when it ceased to exist except for a period of 2 years. He had served as a memberofthe
Joint Committee which had advised on the law relatingtotheprivilegesofParliamentandhadbeenapartytothe
recommendation and decision that the offences set out in ScheduleAtotheParliament(PrivilegesandPowers)Actbe
punishable only by a Court. It appears that the respondent felt that the amending Bill hadbeenpassedinsomehasteas
urgent in the National interest and that the amendment made by the Bill of extending the jurisdiction ofpunishingoffences
in Schedule A of the Act to the National State Assembly was ill advised. He also states in his affidavit -
"In my view a large body such as a Committee of the whole National State Assembly is not asuitableforumtoconductany
inquiry least of all a judicial inquiry. As stated by May, 'The function appropriate to a Committee ofthewholeHouseis
now recognised to be deliberation and not inquiry."
The respondent further states that for his part he honestly considered the proceedings in respect oftheeditorsfarfrom
satisfactory and that he had come to this view after a careful and considered examination of the debate on the Billandthe
proceedings in the Ceylon Observer case, in the light of his own understanding of basic principles of thelawandjustice.
Towards the end of his article the respondent states more or less as his conclusion towards which his article ledandwhich
it sought to support -
"Courts of law are the best institutions equipped to interpret a Statute. It is their proper function,justaslegislation
is the ' proper and rightful function not of the Courts but of the legislature."
In view of his record as a lawyer and a Senator and the part he "played in having the Parliament (Privileges and Powers)Act
brought on to the Statute Book, we have no hesitation in accepting his position that he held the view that the courtsshould
be vested with sole jurisdiction to punish offences of breach of privilege and that he consideredthechangemadebythe
amending law ill-advised. We also accept that hehonestlyconsideredtheproceedingsinrespectofeditorsfarfrom
satisfactory and that his views thereon were formed in the light of his own understanding of the basic principles of lawand
justice. The respondent had written this article to give expression to his beliefs and views and adducereasonsinsupport
of them. He was therefore entitled to pick out points that support his views and state them whethertheyaretechnicalor
notbut all the points made by the respondent have some bearing on the matter. The position of the respondent was that ofa
critic. Though it is a function of a judge to assess the weight that may be given to a point and setoutcounterarguments
and considerations, a critic while he must not misstate the facts, may be partisan and restrict himself to the argumentsand
considerations that support his point of view. Another critic who takes a point of view opposed tothatofthefirstmay
state the arguments and considerations which support that point of view.
With reference to the submissionof the Attorney-General that the entire effect of the allegations madebytherespondent
should be considered while this submission is undoubtedly correct, it does not appear to be fair to take together onlythe
conclusions arrived at by the respondent in respect of various matters apart from his reasoning, as that willnotgivethe
correct effect of the article of the respondent. No doubt, it is correct that the Attorney-General can relyonaninnuendo
butit must be clear that the innuendo is amply supported by the matters on which it is raised. If there isanyreasonable
doubt in regard to that, the respondent being in the position of an accused person, is entitled to the benefit of the doubt.
On a reading of his article it is clear that many of the allegations made by the respondent and referred to by theAttorney-
General flow from the respondent's view of the law. For example, he said that the House had misapplied the law andhadcome
to an erroneous decision. This conclusion had been arrived at by the respondent because inhisviewitwasclearbeyond
doubt that mens rea or the guilty mind was an ingredientoftheoffence.Heaccordinglydrewtheinferencethatthe
statements of the two editors were exculpatory though it is obvious that the members of the House who had among theirnumber
several lawyers and who unanimously voted-to impose a fine, had all taken theviewthattheeditorswerenotdisputing
liability. It is correct as pointed out by the respondent that an editor may state thathetakesfullresponsibilityfor
what appears in his paper in a sense that does not include accepting liabilityforanoffence,butwhereaneditoris
noticed to appear and show cause why he should not be dealt with for breach of privilege and on that occasion he statesthat
he takes full responsibility for what appears in the paper and in addition tendersanunqualifiedapology,hisstatement
takes on a different complexion. But the comment of the respondent arises from the different view of thelawtakenbyhim
and as stated earlier the view of the law taken by him is not one taken arbitrarily but one that may reasonably be taken.In
regard to the submission, that the respondentwas in fact holding up the House to derision, we find thatthelanguageand
tone of the article is sober and serious and that throughout the article no recourse is had to ridicule as such.Itappears
to us also that the respondent was genuinely seekingtosetoutviewsbonafideheldbyhimandthatinallthe
circumstances he has not stepped outside the area of permissible comment.
It must be borne in mind that the view that the power to deal with offences of breach of privilegeshouldbelefttothe
Court and not be exercised by Parliament has been expressed not only in this country but is one takenbylegalexpertsin
almost all parts of the Commonwealth. In "Parliamentary Privilege in Australia" by Enid Campbell, p.123, there appears -
"On grounds of expediency and convenience, much is to be said for reserving totheHousespowertodealsummarilywith
persons who, by their misconduct, disturb the orderly conduct of proceedings. No more seems to be requiredherethanpower
to remove and excludeforcibly if necessary) ' persons creating disturbances in the House or in its vicinity, andpowerto
suspend or expel members guilty of disorderly conduct or wilful interruption of proceedings. Except in regard to offencesof
this kind, transfer of parliamentary penal jurisdiction totheordinarycourtsoflawis,inthiswriter'sopinion,
imperative if the accepted standards for administration of justice are to be satisfied."
In a lecture given on the Law of Parliamentary privilege by Viscount Kilmuir when he wasLordChancellor,hereferredto
criticisms against the power of Parliament to punish for contempt though it does not appear that he agreed with them.
"The criticisms that may have mostcommonly been made are these. It is said that the proceedingsareinquisitory,thata
member of the public who may be publicly censured or even committed to prison is not given legal representation andthathe
had not the advantages of an accused on a trial on indictment of knowingtheevidenceagainsthimandbeinggiventhe
opportunity to reply according to formal and well-established rules.
It is a tribute to the power and influence of the English common law and its quality of preferringjusticeeventotruth,
that the inquisitorial system isso disliked in England. No one in this country is happy unless, if achargeorclaimis
brought against him, he has the right to have it clearly formulated and to have aclearindicationgiventohimofthe
evidence on which it is based. There are, however, occasions where no one is accused but it is essential toinquirewhether
something has taken place and if so whether anyone is responsible for the happening."
It will thus be seen that the criticism is not so much against the National State Assembly as such but againstParliamentary
bodies exercising the right to punish for the offence of breach of privilege. Another matter to be noted is thatasbyand
large the points sought to be made by the respondent are that the jurisdiction to punish for contempt should be exercisedby
the Courts rather than by Parliament, and that the Courts are better equipped to do so, thereisreallynoreflectionon
Parliament. We have dealt with the respondent's comments in regard to the Ceylon Observer case in some detail earlier.
In the result, we hold that an offence under paragraph 7 of Schedule A to the Parliament (Powers and Privileges) Act hasnot
been made out and we discharge the respondent from the notice served on him.
THAMOTHERAM, J. - I agree.
ISMAIL, J. - Iagree.
WEERARATNE, J. - I agree.
SHARVANANDA, J. - I agree.