British Justice for a Member of the Parliament of Ceylon & Some Reflections - PART I

Arthur Reginald Perera was a Sri Lankan Marxist [Trotskyist] politician. He was born in 1915. Perera received his education at St. John’s College, Panadura, a leading private Anglican school founded in 1876 with the generous donations and endowments of the famous de Soysa family of Moratuwa well known for their enormous philanthropy. At a very young age, Perera began to be actively engaged in the activities of Lanka Sama Samaja Party–the first Marxist political party in Sri Lanka founded on Trotskyism. During World War II, he was imprisoned for over three years by the British for engaging in activities undermining the war effort, along with Lanka Sama Samaja Party leaders, Dr. Colvin R. de Silva and Dr. N. M. Perera. He was elected the Member of Parliament for Dehiowita at the General Elections of 1947. It had been a practice and a privilege that the members of the legislature could visit public institutions for the purposes of inspection, information and observation.   

 On 20th June 1950, Arthur Reginald Perera MP visited the Remand Prison at Colombo. He was escorted around the prison by one of the jailors. Sections 35 to 39 of the Prison Ordinance required a jailor of every prison to keep, inter alia, a Visitors’ Book in which Judges, Members of the Parliament and Members of the Board of Prison, might record their observations or recommendations on the general conditions of the prison and of the prisoners at the end of their visits. The same Ordinance further required that the Superintendent of every prison should forward a copy of each entry in the Visitors’ Book to the Commissioner General of Prisons and Probation Services. During his visit, some prisoners complained to Perera that they had not been present in Court when their appeals against convictions were being heard. Perera asked the jailor who escorted him, whether it was true that some prisoners were not taken to Court on such occasions. The jailor told Perera, “We do not take all the prisoners but only those who are undefended.” The jailor’s answer was not an accurate one but Perera did not know that it was inaccurate. But the prisoners’ complaint had some foundation because of the then prevailing practice of the Supreme Court in dealing with unstamped petitions of appeal. These unstamped petitions of appeal were first referred to a Judge in Chambers, Justice Hema Basnayake, who either rejected the petitions for non-compliance of the due procedure without fixing them for a hearing, or acted in revision with any that he regarded as cases deserving for hearing. The prisoners were not present at this preliminary process that took place in Justice Basnayake’s Chambers but not in open Court. This practice did not involve any distinction between prisoners who were represented by their counsel or prisoners unrepresented by counsel. Nor did it, in the eyes of the law, amount to a hearing of appeals of prisoners in their absence. But to some of these prisoners whose petitions were rejected on the ground of non-compliance in the Chambers of the Judge during this preliminary process, and who as laymen were not familiar with the ‘technicalities and peculiarities of the law and procedure’ [to put them in a phrase used by Chief Justice Sir Sydney Abraham to describe such matters in the case of Vellupillai vs. Chairman, District Urban Council of Vavuniya, 39 New Law Reports], it might have reasonably looked as if this practice were a hearing of his appeal in his absence. At the time of his visit to the Remand prison, Perera was totally unaware of this preliminary process that took place in the Chamber of Justice Basnayake. Believing what he heard from the prisoners and the jailor, Perera made the following entry in the Visitors’ Book:   

"The integrity and impartiality of the Judges of the Judicial Committee of the Privy Council were never questioned by the Ceylonese"

“Visited Remand Prison in the company of Jailor Wijewardene. Premises clean. Adequate library facilities required. The present practice of appeals of Remand prisoners being heard in their absence is not healthy. When represented by Counsel or otherwise the prisoner should be present at the proceedings. In my opinion not more than one prisoner should be in a cell [7’x9’] approximately.”
 On the day following his visit, Perera, wrote a letter to the Minister of Home Affairs under whose purview the prisons came, bringing to the attention of the substance of his entry in the Visitors’ Book at the Remand Prison.   
 The Superintendent of the Remand Prison forwarded a copy of Perera’s entry in the Visitors’ Book to the Commissioner General of Prisons and Probation Services. The Commissioner General of Prisons forwarded it to the Registrar of the Supreme Court, drawing his attention to Perera’s remarks therein : “The present practice of appeals of Remand prisoners being heard in their absence is not healthy. When represented by Counsel or otherwise the prisoner should be present at the proceedings,”asking for his observations. The Registrar of the Supreme Court submitted it to Justice Hema Basnayake as he was the judge in charge of unstamped petitions of appeals of prisoners in jail. Justice Basnayake wrote upon the paper on which Perera’s entry has been copied, the following minute:   

“Registrar, 
The statement is incorrect and it is contempt of the Court. Issue a rule on A. Reginald Perera returnable Tuesday, 25th. I shall sit personally on that day. 
 (Sgd) Hema Basnayake 11/7/50 ”   

Accordingly, the Registrar of the Supreme Court issued a Rule on Perera ordering him to appear before Justice Basnayake on the 25th July 1950 and show cause why he should not be punished for Contempt of Court in making the entry referred to above in the Visitors’ Book of Colombo Remand Prison. The Rule was served on Perera and he appeared in the Supreme Court before Justice Basnayake on the 25th July 1950. He requested the court to grant him further time, since he needed to obtain some documents not in his possession and legal advice. Justice Basnayake refused this request and ordered Perera to give his explanation. Perera made an oral statement to Justice Basnayake. In his statement, Perera explained to Justice Basnayake the circumstances that led to his making the entry in the Visitors’ Book complained of in the Rule. He told the Judge that in making that entry in the Visitors’ Book, he had acted in pursuance of his duties as a Member of Parliament, and that he had no intention of bringing the Supreme Court into disrepute or contempt. When questioned by the Judge, he made it clear that he sincerely believed the information of Jailor Wijewardene, a person in authority and that he acted upon it and he was not able to investigate the accuracy of it. Perera submitted that his entry in the Visitors’ Book did not amount to contempt of Court. Justice Basnayake refused to accept the explanation given by Perera and convicted him of Contempt of Court and sentenced him to pay a fine of Rs.500, (an enormous sum at that time when a brand new British car could be purchased for about Rs. 2500), and in default, a sentence of six weeks rigorous imprisonment.   

The litigants in Ceylon had the right to appeal to the Judicial Committee of Privy Council of the United Kingdom against the judgments and orders of the Supreme Court of Ceylon from 1802 to 1971 when the United Front government led by Mrs. Sirima Dias Bandaranaike by an Act of Parliament abolished that right. The integrity and impartiality of the Judges of the Judicial Committee of the Privy Council were never questioned by the Ceylonese. In presenting the Bill to abolish the right of appeal to the Judicial Committee of the Privy Council, one of the arguments advanced by Felix R. Dias Bandaranaike, the then Minister of Justice to justify his government’s move was that the ordinary and poor people could not afford the cost of such appeals. I have perused the nearly 300 decisions of the Judicial Committee of the Privy Council on the appeals from Ceylon from the 1840s to 1971. I have observed that once an appeal was sent to the Judicial Committee of the Privy Council from a judgment or an order from the Supreme Court together with record of the case in Ceylon, even in the cases where the appellants or/and respondents were absent or unrepresented by lawyers, the Judges of the Judicial Committee of the Privy Council had always carefully gone into the merits of the case, and in some cases, delivered judgments in favour of the parties absent or unrepresented by lawyers. I see no justification for Felix Dias Bandaranaike’s argument of high costs involved. Rather, I believe that his government’s move to abolish the right to appeal to Judicial Committee of the Privy Council was influenced by that government’s displeasure over some decisions of the Judicial Committee of the Privy Council which were not in its favour. The landmark judgment of Judicial Committee of the Privy Council in the case of Liyanageet.al vs. The Queen [1967] 1 AC p 259, 68 New Law Report p 282 was one such example.   

"The litigants in Ceylon had the right to appeal to the Judicial Committee of Privy Council of the United Kingdom against the judgments and orders of the Supreme Court of Ceylon from 1802 to 1971 when the United Front government led by Mrs. Sirima Dias Bandaranaike by an Act of Parliament abolished that right"

The Judicial Committee of the Privy Council granted Perera Special Leave to appeal against the order made by Justice Basnayake, convicting him of Contempt of Court .This, the Judicial Committee of the Privy Council, did, because there could be no appeal in Ceylon from the Order of Justice Basnayake, owing to the nature of proceedings of a case of contempt of Court. Mr. Perera’s appeal before the Judicial Committee of the Privy Council was heard by a Bench comprising three eminent British Judges namely Lord Simonds, Lord Morton of Henryton and Lord Radicliffe. Lord Radicliffe, delivering the decision of the Judicial Committee of the Privy Council on 28th February 1951 observed:   

“Their Lordships are satisfied that this Order [Justice Basnayake’s Order convicting Perera of Contempt of Court] ought not to have been made. They have given the matter the anxious scrutiny that is due to any suggestion that something has been done which might impede the due administration of justice in Ceylon, and it is proper that the Courts there should be vigilant to correct any misapprehension in the public that would lead to the belief that accused persons or prisoners are denied the right that ought to be theirs. But Mr. Perera too has rights that must be respected, and Their Lordships are unable to find anything in his conduct that comes within the definition of Contempt of Court. That phrase has not lacked authoritative interpretation. There must be involved some act done or writing published calculated’ to bring a Court or a judge of the Court into contempt or to lower his authority “or something” calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts.” see Reg.v.Gray 1900 2 Q.B. 36. What has been done here is not at all that kind of thing. Mr. Perera was acting in good faith and in discharge of what he believed to be his duty as a member of the Legislature. His information was inaccurate. But he made no public use of it, contenting himself with entering his comment in the appropriate instrument, the Visitors’ Book, and himself with entering his comment in the appropriate instrument, the Visitors’ Book, and writing to the responsible Minister. The words that he used made no direct reference to the Court, or to any judge of the Court, or indeed to the course of justice, or to the process of the Courts. What he thought that he was protesting against was a prison regulation, and it was not until some time later that he learnt that, in so far as a petitioner had his petition dealt with in his absence, it was the procedure of the Court, not the rules of the prison authorities, that brought this about. 

Finally, his criticism was honest criticism on a matter of public importance. When these and no other are the circumstances that attend the action complained of, there cannot be Contempt of Court.”

Lord Radicliffe, further stated at the end of his judgment:

“At the time of the hearing of the appeal the Respondent had not entered an appearance. It was however brought to Their Lordships’ attention that there seemed to be some misunderstanding on the Respondent’s part as to the parties to the appeal. In the special circumstances they therefore gave a direction that, before tendering their advice to His Majesty, they would hear any representations that the Respondent might wish to place before them, such representations to be confined to the question of costs. At an adjourned hearing the Respondent appeared by Counsel. Having taken into consideration what was urged before them. Their Lordships have humbly advised His Majesty that the appeal should be allowed and the Order of the Supreme Court of Ceylon dated 25th July,1950 set aside, any moneys paid by the Appellant by way of fine to be repaid to him and the Respondent to pay his costs (if any) of the proceedings in Ceylon. The Respondent must pay the Appellant’s costs of the appeal, excluding any costs of the adjourned hearing.”

This landmark decision of the Judicial Committee of the Privy Council is reported in the British Law report –Appeal Cases-[1951] AC 482.  If there was no right of appeal to the Judicial Committee of the Privy Council, Arthur Reginald Perera MP would have to pay the heavy fine imposed after his conviction or in default, would have served a six month’s rigorous imprisonment for “acting in good faith and in discharge of what he believed to be his duty as a member of the Legislature and for protesting against what he sincerely believed as an unhealthy and unfair practice of Prison authorities. He purely acted upon the complaint of some remand prisoners and information provided to him by a prison official in authority. He did not know that the information given to him by the jailor was inaccurate. It was the jailor who provided him with that inaccurate statement. As Lord Radcliffe correctly observed : “his criticism was honest criticism on a matter of public importance”.   
Perera served as a Member of Parliament representing the electorate of Dehiowita till 1952. He opted not to seek re-election at the subsequent parliamentary elections in 1952. At the 3rd parliamentary election held in April 1956, Perera contested the seat of Matugama and was unsuccessful. In 1959, he was appointed a member of the Senate of Ceylon and served in that capacity in 1967. In 1971, he was appointed Sri Lanka’ Ambassador to Egypt. Perera passed away on 19 November 1977.

To be continued tomorrow