Keerthiratne V. Gunawardene

1956 Present: K. D. de Silva, J., and H. N. G. Fernando, J.

N. H. KEERTHIRATNE (Acting Minister of Posts and Broad
casting), Petitioner, and M. M. P. GUNAWARDENE et al.,
Respondents

S. C. 587-Application in Revision in D. C. Colombo, 31,853/M

Evidence-Communication made to public officer in official confidence-Privilege- Applicability of English law-Evidence Ordinance, ss. 100, 123, 124, 125-. 162 (2).

Sections 123 and 124 of the Evidence Ordinance do not correspond with the English law on the same subject, and the general principle by which the English. Courts are guided is not applicable to cases falling under section 124.

When a public officer objects to the production of a document on the ground that it is a communication made in official confidence, the Court has jurisdiction under section 124, read with section 162 (2), of the Evidence Ordinance to-inspect the document and admit it in evidence if it is of opinion that the communication was not made in official confidence. The expression " communication made in official confidence " would include not merely inter-official correspondence but also correspondence by members of the public with public officials. The mere mark " confidential" placed on a document by the individual who writes it does not convert the document into a communication, made in official confidence.

Obiter : If a Court agrees that the communication was made in official confidence, it can determine by inspection whether the production of the communication would or would not be prejudicial to the public interest.

APPLICATION for the revision of an order of the District Court Colombo.

In this action for defamation instituted by a former officer of the Posts and Telegraph Department against two persons who had preferred, a petition to the Minister of Posts and Broadcasting, the Minister, upon, being summoned by Court to produce the original of the petition, took

objection to the production on the ground that the petition was a statement made to him in official confidence and that the public interest would suffer by the disclosure of its contents.

E. F. N. Gratiaen, Q.C., Attorney-General, with M. Tiruchelvam, Deputy Solicitor-General, and J. W. Subasinghe, Crown Counsel, for the petitioner.

Walter Jayawardene, with Neville Wijeratne, for the plaintiffs-respondents.

Cur. adv. vult.

August 21, 1956. H. N. G. FERNANDO, J.-

This was an application for the revision of an order of the Additional District Judge of Colombo, directing the Ministry of Posts and Broad-casting to produce the original of a petition sent to the Minister by two private individuals. The order in question was made by the learned District Judge in an action for defamation instituted by a former officer of the Posts and Telegraph Department against the two persons who had preferred the petition to the Minister. Upon being summoned to produce the document the Minister filed an affidavit averring that the petition was a statement made to the Minister in official confidence and that the public interest would suffer by the disclosure of its contents ; objection to production was taken on the ground of privilege. The basis upon which this Court is now asked, in revision, to set aside the order of the District Judge is thus set out in the petition in revision:-

" (a) The said order is contrary to law.

(b) The learned Judge erred in holding that the said petition was not made in official confidence and was not a privileged document. An affidavit from a Minister of the Crown in Ceylon that a particular communication is privileged and cannot therefore be produced as evidence in a Court of Law is conclusive.

(c) The learned Judge has misdirected himself in holding that a communication can only be made in official confidence if it is made by one official to another.

(d) The Law of Ceylon on this matter is identical with English Law ".

The language of paragrap

Click Here to Read the rest of this document