Nadesan Charged for Breach of Privilege

Somasunderam Nadesan Q.C.

Nadesan charged for Breach of Privilege

From the Preliminary report to the International Commission of Jurists on the trial of S.Nadesan, QC, in the Supreme Court of Sri Lanka on 12 to 15 May 1978 by the Observer /Lord Hooson. (ICJ Newsletter, Geneva: International Commission of Jurists, 1980, pp. 51-54)

"The event which led to the trial was the criticism of S. Nadesan, a respected Queen's Counsel and former Chairman of the Bar Council and Senator in Sri Lanka, on events in the Parliament of Sri Lanka. Foreign Minister Hameed made a complaint regarding breach of privilege of Parliament against the Ceylon Observer. On request of the Civil Rights Movement, Mr. Nadesan criticized the privilege laws in learned articles in The Sun. The Committee of Privileges referred a complaint to the Attorney-Genera], who stated that the article was defamatory. After some time, the hearing at the Supreme Court took place. The observer considers the procedures impeccable. Lord Hooson concludes that Sri Lanka is very much a democracy, and that at least lip service is paid to the paramount importance of the rule of law and access to independent justice. The judiciary has been extremely unsettled during the last decade, due to changes brought about by the previous government and the present government."

When Nadesan argued the cause of media freedom

Courtesy: Mudaliyar, Sri Lanka Sunday Times, 6 July 1997

New Media Minister Mangala Samaraweera on June 26 told journalists the Cabinet had decided to repeal the Parliamentary Privileges Special Provisions Act 1978 which conferred on Parliament the power to try and punish journalists.

We applaud the Minister for taking a step in the right direction. The Act No: 5 of 1978 was an amendment to the Parliamentary Powers & Privileges Law. It conferred on Parliament the power to punish any offence specified in Part A of the Act This amendment was allegedly brought in to muzzle the media by the UNP Government. The pernicious law which had the approval of Parliament with the UNP steamroller majority, has it that that a person could be punished for a term not exceeding two years and a fine of Rs. 5,000, and punishment imposed by the Assembly was tantamount to a punishment imposed by the Supreme Court. When this Act was passed and even when a journalist was punished no one in the Bar Association protested. The Bar should have immediately protested at the vesting of this amount of judicial power in the legislature.

What happened subsequently was something that showed clearly how the members of the National State Assembly would act as prosecutors and judges in convicting an Editor of the Ceylon Observer.

On January 30, 1978, the Observer carried a photograph of a motor boat on some waterway showing a man at its wheel and a young woman seated in it at some distance away from him. and the caption read "the president of one of the leading industrial complexes in Korea showing the Sri Lankan Foreign Minister around the showroom of the industrial complex". Obviously this was a mix up of captions, and the Government in office saw various insinuations innuendoes in the caption, and thought there was someone behind the whole episode maliciously bringing the reputation of the Minister down in the eyes of the public. The Leader of the House moved a resolution and said it was intended and calculated to bring Foreign Minister A.C. S. Hameed into disrepute and thereby constituted the publication of a defamatory statement concerning a Member of the National State Assembly. It is interesting to note that Section 8 refers to the publication of any defamatory statement concerning any member in respect of his conduct as a Member.

Hauled before parliament were Observer Editor Harold Pieris and its Associate Editor Philip Cooray. The Observer was a state-controlled newspaper. In 1970 when Sirimavo. Bandaranaike became the Prime Minister what the Government did was to vest the ANCL's equity in the Public Trustee, and all papers came under Government control. From 1977, like all other Government papers the Observer did everything possible to support the Government which had been elected to power with a two thirds majority.

The resolution that was tabled in the National State Assembly ordered the two editors to be present at the National State Assembly. They were given less than two hours to show cause. One of the opposition members of the NSA raised the question of insufficient time. He said no time to study this matter had been given to their group and added in regard to a trivial offence, whoever had been asked to show cause should be given sufficient time to study the allegations.

But this plea of the lone member of the opposition did not find favour with the rest of the Committee and nothing came off it and the Committee proceeded to perform its judicial functions.

On the lack of time given to the editors to show cause eminent lawyer S. Nadesan states, "A basic principle of natural justice demands that a person accused of an offence should be given adequate opportunity to examine and study the charge, consult competent lawyers, if need be, and get full advice as to the legal position before he shows cause. This principle of natural justice was not observed in this case. In less than two hours it will not be possible to get competent legal advice in a complicated matter involving the law of defamation and the provisions of the Privileges Act."

The Leader of the House moved a resolution that the whole House form itself into a Committee to investigate and report back on the complaint. The editors were present. Harold Pieris has been off duty on that particular day and only 947 copies of the paper containing the incorrect caption and the balance was printed with the correct caption. At the end of the debate Gamini Dissanayake disagreed with the contention that there was no malicious intent which was the view of J.R. Jayewardene, the Prime Minister. It was not inadvertence but the deliberate act of an employee, an assistant, foreman in the paper's Works Department.

Mr. Jayewardene, the then Prime Minister with a five sixth majority behind him gave curious reasons for fining the editors "the reasons why we have decided to impose a fine are that, firstly, we want to give a donation to the deaf and blind school, secondly we wish to show that this Bill is now law with teeth in it, and in the future any body who comes before this House will not escape with a fine: thirdly the Associated Newspapers of Ceylon Limited of which I am a shareholder is not an indigent organisation. It has enough money to pay the fines of both these editors, if they were to pay the fines I would certainly agree that we should not fine them, but as a shareholder not as Prime Minister I will see that the organisation pays the fine. The Editors were fined thousand rupees each.

The manner in which some members of the National State Assembly questioned the two editors who explained to the members that it was purely a mistake. That there was absolutely no malicious intent to defame a Minister of the Government was not accepted. They questioned them, ridiculed them and transformed the National State Assembly into a Kangaroo Court. They were the inquirers, investigators, prosecutors and the Judges. Except few members of the opposition, including Ms. Bandaranaike, other Members rejoiced at the feeling of being able to question the witnesses and pass judgment on them.

When this entire episode took place there was one lawyer who was willing to take on the entire National State Assembly with its overwhelming power and the Government machinery which reduced the opposition to eight seats. He wrote a series of articles in the Sun newspaper. He was no lackey of the Government, he was not a council member of the Bar Association, he did not receive certificates about his independence from the Ministers of that Government, but he had the interest of all people who loved freedom. He believed in the first amendment to Constitution of the United States of America to the last letter - which reads as "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the Press; or the right of the people peaceably to assemble and to petition the Government for redress of grievances."

He was S. Nadesan, Q.C., an indefatigable fighter for human rights and the freedom of the media and freedom of expression. His articles to the Sun questioned the manner in which the National State Assembly transformed itself into a Court House where the Legislature was given the power of the Judiciary.

He said in his article: "In this situation, the first question that arises is whether this picture, along with the caption, even if it identifies the Foreign Minister as the man in the motor boat, is calculated to lower Mr. Hameed in the estimation of right thinking members of society, to cut him off from society or to expose him to hatred, ridicule or contempt. Merely because a statement is false, it does not become defamatory. To be defamatory, an imputation must tend to lower a person in the estimation of right thinking members of society generally. If a publication is capable of more than one meaning, one of which is defamatory and the other innocent, it is the innocent meaning that should be attached even in civil cases. It is a basic principle of criminal law that if there is a doubt as to whether the publication is defamatory or not, the benefit must be given to the person charged with the offence.

Mr. Nadesan then went on to discuss the Section under which these editors were charged and fined, "the publication of any defamatory statement concerning any members in respect of his conduct as a member." What is meant by the words "in respect of his conduct as a Member"? Quoting Viscount Radcliffe Mr. Nadesan stated " for, given the proper anxiety of the House to confine its own or his Members' privilege to the minimum infringement of the liberties of the others, it is important to see that these privileges do not cover activities that are not squarely within the Member's true functions". "If on the other hand it one makes a defamatory statement regarding a Member of Parliament, that he was found in a brothel or that he had cheated a Co-operative Society or misappropriated some funds, however false and reprehensible these statements may be, they are not publications made in respect of his conduct as a Member, and no question of Parliamentary Privilege arises. In these the individual Member has to seek his remedy in the Courts".

After the publication of this article Mr. Nadesan had to undergo the ordeal where the Government decided that Mr. Nadesan had committed a breach of privilege and that the articles that appeared in the Sun newspaper were prima facie defamatory and referred to the Attorney General for report. Thereafter this matter was referred to the Supreme Court, and Mr. Nadesan was charged before the Supreme Court for breach of privilege. Mr. Nadesan fought for the independence of the media and was appalled by the fact that Parliament decided to charge the editors for breach of privilege. Mr. Nadesan wrote these articles to the Sun newspaper because he believed that the freedom of the Press and the legitimate criticism were essential to prevent misconduct and abuse of power. After Mr. Nadesan, the other person who has fought for the independence of the media from the legal fraternity is Desmond Fernando, President of the International Bar Association.