Abdul Cader V. Kaufmann And L.D. Parsons

1928 Present: Schneider J.

In the Matter of an Application for a Writ of Prohibition.

ABDUL CADER v. H. P. KAUFMANN AND
L. D. PARSONS.

Writ of prohibition-Charge of defamation against member of Council-Words uttered in Council-Privilege.

A member of the Legislative Council of Ceylon is not entitled to absolute immunity from civil and criminal proceedings in respect of statements made by him in Council.

APPLICATION for a writ of prohibition made by the petitioner who is a member of the Legislative Council, against the 1st respondent, who is the Police Magistrate of Colombo, forbidding him from continuing proceedings in case No. 37,928 of the said Court, in which the 2nd respondent, who is a Government Medical Officer and Superintendent of the Lunatic Asylum, preferred a charge of defamation against the petitioner. The charge was based upon statements made by the petitioner in the Legislative Council as member and was preferred before the 1st respondent, who entertained it and directed process to issue calling upon the petitioner to answer the charge. The petitioner applied to the Supreme Court for an order prohibiting the continuance of the proceedings in the Police Court.

H. V. Perera (with Marikar, Rajapakse, and Deraniyagala), in support.-We claim absolute privilege for statements made by us in course of debate in Legislative Council. If the privilege we claim is only qualified we would have to go to Court and prove certain facts before privilege is extended to us, and prohibition would not lie.

Absolute privilege does not mean a privilege to be malicious. It means an immunity from legal consequences, and immunity from being even compelled to appear in Court. Of course such an immunity entails a privilege to be malicious, but that is merely a consequence of absolute privilege, not its essential feature. (Bottomley v, Brougham.,1 Burr v. Smith.2)

The reason for absolute privilege is necessity. A balance has to be struck between the good and evil flowing from freedom of speech. (Scott v. Standsfield,3 Munster v. Lamb,4 Ex parte Wason,5 Chatterton v. Secretary of State for India.6)

1 (1908) 1 K. B. 584.
2 (1909) 2 K. B. 306 at 311.
3 (1868) 3 L. R. Ex. 220.
4 (1883) 11 Q. B. D. 588.
5 (1889) 4 Q. B. 573-L. R. 4 Q. B .
6 (1895) 2 Q. B. 189.

Where Parliament grants a power, every power reasonably , necessary for the exercise of that power is impliedly granted. (Borton v. Taylor,1 Doyle v. Falconer,2 Stockdale v. Hansard.3)

Our legislative Council not only legislates, but under the Order in Council creating it, exercises critical functions as well. For the proper exercise of these powers, there can be no doubt that full freedom of speech is necessary, with immunity from any form of liability in law. If the privilege of members is only qualified, anyone who considers himself defamed, as a result of a member performing his critical functions, could go to Court and file a plaint, whereupon it will be necessary for the member to defend himself in Court, and prove to the satisfaction of the Judge that his statement is privileged, incurring all the expenses and trouble which such a course entails. The fear of such constant litigation would certainly act as a deterrent to any member from performing his high duties freely. It is therefore necessary to have an absolute privilege. For absolute privilege is an immunity from even being dragged to Court. Where a Judge sees on the face of the plaint that the statement complained of is absolutely privileged, he must refuse to entertain it.

We claim that the plaint in this case discloses only a statement that is absolutely privileged, and that therefore the learned Police Magistrate should have rejected it.

Where the power of freedom of speech is abused our Legislature has the power to punish, but outside its walls the question whether such power has been abused cannot be entertained, even

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