It was only last week that Leader of the Joint Opposition in Parliament Dinesh Gunawardena MP was suspended from sittings of the Parliament for one week by Speaker Karu Jayasuriya,
on the ground that his conduct was against the dignity and decorum of the House. This brings to mind the hilarious incident involving the former's bappa, Robert Gunawardena MP, when he was ordered by Speaker Sir Francis Molamure not to enter the House "through this door for seven days", entered the Chamber, through a large window,of the old Parliament building at Galle Face, the following day, to the loud laughter of all including the Speaker. His notoriety for, having a rebellious temperament, and mischievous conduct, precludes the possibility that this could only be a yarn spun by a lecturer in Constitutional Law of yesteryear, to amuse his students who were dozing off at the lecture!
In the case of Attorney General v. Siriwardena the Member of Parliament for Ududumbara made a speech in Parliament criticizing Karl Marx and his followers in Sri Lanka. In his speech he had made several statements which were not factually correct and used abusive language. A week afterwards the 'Aththa' newspaper carried an editorial criticizing the MP's speech with very abusive language, in this editorial there were several statements to the effect that he was an idiot, an ignoramus and a person not capable to hold the high post of MP. The heading of the editorial was "Don't bellow like a bull". The editor was charged with breach of privilege in Part A of the Schedule to the Parliament (Powers and Privileges) Act No. 21 of 1953 in item 7 on the publication of any defamatory statement reflecting on the proceedings and the character of Parliament and item 8 on the publication of any defamatory statement concerning any member in respect of his conduct as a member. For the first offence he was fined Rs 250 and for the second Rs 50.
The Parliament (Powers and Privileges) Law No. 5 of 1978 gave Parliament concurrent power with the Supreme Court to punish in respect of the serious breaches of privilege specified in Part A of the Schedule. Hot on the heels of the 1978 amendment, the then legislature, the National State Assembly (NSA) took up a case in which a breach of privilege specified in Part A was alleged to have been committed. The NSA punished the offenders, 'Ceylon Observer' Editor Harold Pieris and its Associate Editor Philip Cooray, for publishing a photograph with a caption which, it was alleged, was intended and calculated to bring A.C.S. Hameed, Minister of Foreign Affairs, into disrepute and this constituted a defamatory statement reflecting on the proceedings and the character of the NSA. Offences specified in Part A of the Schedule to the Parliament (Powers and Privileges) Act were originally punishable only by the Supreme Court and the National State Assembly. The editors were tried by the whole House sitting as a Court.The two editors were summoned before the Bar where they apologized for the error and said they published it without any malicious intention.
Notwithstanding that plea the NSA enforced a fine of Rs 1,000 on each under the powers acquired by it the day before.
In the case of Attorney General v. Nadesan the respondent S. Nadesan QC, in an article published in the 'Sun' newspaper relating to the powers and privileges of Parliament had commented on the desirability or otherwise of the punitive action, taken by the legislature, against the two editors. The respondent criticized the decision and stated that the matter should have been referred as in the past to a Select Committee of the House. The article concerned was discussed by a Parliamentary Select Committee, which referred it to the Supreme Court. A Five Judge Bench comprising Samerawickrame ACJ, ThamotheramJ, Ismail J, Weeraratne J and Sharvananda J held that the article did not constitute a breach of privilege of Parliament.
The judgment went on to say that there is an area of permissible criticism and comment and it is only if a person passes outside its bounds that he will be liable. What arises for consideration of the Court is whether, in expressing his arguments and views, be they correct or incorrect, 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 not by itself reflect upon the House. The respondent made a point of the fact that the two editors were given only two hours to, appear before the House and defend, themselves. This offended natural justice because the right to be heard and defend oneself would be illusory without time to prepare a defence and knowledge of the case to be met. What is sufficient notice will vary with the facts as will the details which must be given of the case to be met.
On the facts available the respondent was entitled to make the point he did. The comment of the respondent was that the House proceeded to consider the question of punishment without knowing exactly what crime the two suspects had committed. Such comment will apply equally to some cases tried in a Court and is not by itself a reflection on the House. The Order that the fine should be paid to the Deaf and Blind School was 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 not appear fair to take together only the conclusions arrived at by the respondent apart from his reasoning. An innuendo can be relied on but it must be supported on the facts. The respondent will be entitled to the benefit of any reasonable doubt.
It will be seen that the criticism in this case is not so much against the National State Assembly as such but against Parliamentary bodies exercising the right to punish for the offence of breach of privilege. Another matter to be noted is that as by and large the points sought to be made by the respondent are that the jurisdiction to punish for contempt should be exercised by the Courts rather than by Parliament, and that the Courts are better equipped to do so, there is really no reflection on 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 Parliament (Powers and Privileges) Act has not been made out and we discharge the respondent from the notice served on him. Respondent discharged.
Breaches of privilege of Parliament
Part II of the Parliament (Powers and Privileges) Act No. 21 of 1953 deals with breaches of the privilege of Parliament and punishment thereof.
On breaches of privilege, Section 22 says, (1) each of the acts and omissions specified in the Schedule to this Act is hereby declared to be breach of the privileges of Parliament, (2) every breach of the privileges of Parliament which is specified in the Schedule to this Act (whether in Part A or Part B thereof) shall be an offence under this Part punishable by the Supreme Court under the provisions hereinafter contained in that behalf and (3) every breach of the privileges of Parliament which is specified in Part B of the Schedule to this Act and which is committed in respect of, or in relation to, Parliament shall be an offence under this Part punishable by Parliament under the provisions contained in that behalf.
On jurisdiction of Supreme Court in cases of breaches of privilege Section 23 says, (1) upon application made to the Supreme Court in that behalf by the Attorney General and supported by evidence on affidavit, the Court- (a) may, if satisfied after perusal of the application and such evidence that any member or other person appears to have committed any offence under this Part, cause notice to be served on such member or person calling upon him to show cause why he should not be punished for that offence; and (b) may if no cause or no sufficient cause as aforesaid is shown to the satisfaction of the Court, after such inquiry as the Court may consider necessary, convict him of the offence and sentence him to imprisonment of either description for a term not exceeding two years or to a fine.
On the procedure in the Supreme Court Section 24 says that the proceedings and the procedure to be followed upon an application to the Supreme Court under Section 23 shall, subject to such rules if any as are hereby authorized to be made for the purpose under Article 136 of the Constitution be such as may be determined by the Chief Justice or the Puisne Justice hearing the application; and in relation to and for the purpose of such proceedings the Supreme Court shall have the same powers, whether of compelling the attendance of persons and the production of documents or otherwise, as the Court has in the exercise of its ordinary jurisdiction.
On the conditions precedent to making of application to the Supreme Court Section 25 says, (1) an application under Section 23 may be made to the Supreme Court by the Attorney General in the case of any alleged offence under this Part committed in respect of or in relation to Parliament, only if (a) the Attorney General has furnished a report to the President or Speaker of Parliament stating that, in the opinion of the Attorney General, there is sufficient evidence to warrant the taking of further steps under this Act in that case, and (b) Parliament, after consideration of such report, has by resolution required the Attorney General to make the application,and (2) the making of an application under Section 23 by the Attorney General in any case, shall constitute conclusive evidence that the application has been duly made in accordance with the preceding provisions of this Section.
Reference of cases to Attorney General
On the reference of cases to the Attorney General with statements, Section 26 says, (1) for the purpose of enabling the Attorney General to furnish a report in relation to any case of an alleged offence under this Part, the President or the Speaker, as the case may be, may: (a) on a complaint of the alleged offence being made to him in chamber by any member, or (b) if required so to do by resolution of Parliament, refer the case to the Attorney General for report, (2) where a case is to be referred to the Attorney General under Sub-section (1) the President or the Speaker, or any other member, if authorized in writing so to do by the President or the Speaker, or the Clerk of Parliament if so authorized (a) shall record on oath or affirmation the statement of the member making the complaint of the alleged offence, and (b) may record on oath or an affirmation the statement of any other person whose evidence is or may be in the opinion of the President or Speaker, relevant. The statement of any person may be recorded under the preceding provisions of this Section at any time after the case has been referred to the Attorney General if the President or the Speaker considers it necessary whether of his own motion or at the request of the Attorney General, (3) the provisions of Sections 10 to 13 shall apply in all respects for the purpose of enabling statements to be recorded under Sub-section (2) of this Section in like manner as they apply for the purpose of enabling evidence to be taken by a committee, and for the purpose aforesaid the person authorized by of under Section (2) of this Section to take such statement shall have the same powers as are conferred by those sections on a committee or the chairman thereof, (4) the provisions of Sections 15 to 17 shall apply to and in relation to any evidence given for the purposes of Sub-section (2) of this Section, (5) notwithstanding anything in the preceding provisions of this Section, a person who is alleged to have committed an offence under this Part shall not be bound or compelled without his consent to make any statement under Sub-section (2) in relation to that offence and (6) where a case is referred under Sub-section (1) to the Attorney General for report, the record of all statements taken under Sub-section (2) shall be transmitted to the Attorney General, and the Attorney General shall, after consideration of such statements, report to the President or Speaker stating whether there is, in the opinion of the Attorney General, sufficient evidence to warrant the taking of further steps under this Act in respect of an alleged offence under this Part; and such report shall contain, for the information of Parliament, a summary of the facts which in the opinion of the Attorney General, are capable of being proved upon the evidence contained in the statements.(ceylontoday.lk/)