In re Parmanandam - judgment [1972] FJSC 2; No 90 of 1972 (9 May 1972)

IN THE SUPREME COURT OF FIJI

No. 90 of 1972

IN THE MATTER OF AN APPLICATION BY THE ATTORNEY-GENERAL FOR FIJI FOR AN ORDER OF COMMITTAL FOR CONTEMPT

AND

IN THE MATTER OF ONE VIJAYA PARMANANDAM

JUDGMENT

The judgment I am about to pronounce is the judgment of the whole Court and is the unanimous expression of our findings and opinions.

On the motion of the Attorney-General for Fiji the Court is called on to exercise its power of punishing contempts of Court under Order 52 Rule 1 of the Rules of the Supreme Court of Fiji. The Attorney-General seeks an order of committal in respect of the respondent whose name and address, as deposed to by him, is Vijaya Parmanandam of 50 Beach Road, Laucala Bay, Suva. The alleged contempt arises from a public speech admittedly made by him at the Suva Civic Centre on the 28^th day of March 1972, a tape recording of which we have heard and which is accurately reproduced in all material respects in the transcript before the Court marked “A.P.1”; and from a pamphlet, a specimen of which is before the Court marked “ADSA 1” and upon which the Attorney-General gave notice of his intention to rely. Printed at the foot of this pamphlet are the words “Authorised and Published by Vijaya Parmanandam of 50 Beach Road, Laucala Bay for and on Behalf of the National Federation Party. IPP Print, Suva.” In view of these words, the nature of these proceedings and the complete absence of any denial of authorization or publication either in the respondent’s affidavit or at any time in the course of the proceedings we are fully satisfied that he was responsible for same.

The grounds on which the order is sought are that the words used in the speech and the pamphlet scandalise the Court and the words used in the speech are a scurrilous attack on the Chief Justice.

Let us make it clear beyond any doubt that the power of the Court to punish for the contempt of scandalising the Court itself is not for the personal vindication of the Judges. The real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone. We adopt the view of Dixon J. (as he then was) in R. v. Dunbabin Ex parte Williams [1935] HCA 34; (1935) 53 C.L.R. 434 at 447 that “It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority. But it must be done by judicial remedies, and judicial remedies are necessarily administered by the Courts themselves. The Court must therefore undertake the task notwithstanding the embarrassment of considering what it should do in relation to an attack upon himself. There is no practicable alternative.”

The Court has been addressed by Counsel for the respondent on the might of the respondent under the Constitution of Fiji to freedom of speech. However there is a profound difference between freedom, be it freedom of action or freedom of expression, and licence. While justice is not a cloistered virtue and it is open to all to criticise temperately and fairly the public administration of same, criticism which is actuated by malice in which imputes improper motives to those taking part in the administration of justice or which in calculated to bring a Court or a judge of the Court into contempt or to lower his authority cannot shelter behind the bulwark of freedom of speech.

Abuses of the freedom of speech are the excrescences of liberty and to curtail such abuses is not to imperil liberty but to safeguard it and ensure its natural and healthy growth.

The Constitution of Fiji to which the Court was referred provides for a Judicature independent of Parliament. In particular, the Justices of Appeal (other than the President who is the Chief Justice) are appointed by the Governor-General after consultation with an independent Judicial and Legal Services Commission; the Chief Justice of the Supreme Court is appointed by the Governor-General acting after consultation with the Prime Minister and the Leader of the Opposition; the Puisine Judges are appointed by the Governor-General after consultation with the said Judicial and Legal Services Commission; and the Magistrates are appointed by the aforesaid Judicial and Legal Services Commissions.

The respondent, a Barrister and Solicitor of Fiji, who would not be unfamiliar with the provisions of the Constitution, when opening his speech said “I will be speaking on a topic which is usually not one talked about at political meetings. It is a topic on which I am compelled to speak. It is a specialised topic and perhaps it is a topic which might not be of as general interest as other topics normally talked about. The topic in question is the judiciary. Now to make things quite clear so that be there any member of the press or radio present and in order to ascertain that there will be no misquotations or distortions deliberate or otherwise can I advise the house that the whole of this speech is being taped. Can I check with you Mr Shiu Prasad? Thank you.” It is thus abundantly plain that the speech was not delivered ex improviso but was deliberately planned. In his speech the respondent stated “This attack is being made on the NFP platform to clean the judiciary once and for all ....” There can be no doubt about the ordinary meaning of the term “to clean” which is to free from dirt or filth. Later in the speech, after incorrectly asserting that it is a rule in all Commonwealth countries not to appoint as Judges of the Supreme Court persons who have served as Magistrates, the respondent proceeded “This principle has been evolved so that there may not be occasions created by which any particular magistrate at ay particular time fall into sacrificing a principle or a rule, or a particular rule of law, for the sake of expediency or for the sake of promotion. Yet all magistrates in this country are put into this position almost every day. And that is the state of your halls of justice under the Alliance Government in Fiji.” The respondent subsequently referred to the Chief Justice in the following terms “This particular gentleman, Sir John Nimmo, an Australian, who was appointed Chief Justice of Fiji, you will recall his salary, or part of his salary, is paid by the Australian Government. Now where is our independence? Have we sold our independence for a few measly thousand dollars to Australia?’ The respondent then proceeded to refer to a judgment of the Supreme Court in its appellate jurisdiction, a copy of which is annexed to the respondent’s affidavit and marked “B”. The respondent had been one of two counsel for a party in the lower Court and their conduct as counsel, to which they themselves deposed by way of affidavit, was subjected to certain criticism in the judgment; it being the undoubted right of a Court to comment if necessary on the conduct of counsel as counsel. As the judgment in question is the subject matter of an appeal to the Court of Appeal we shall say no more about it. Regrettably the respondent, far from exercising any restraint, indulged in what can only be described as a deliberate distortion of the true position by stating “the very same Chief Justice, Sir John Nimmo, condemned recently two Suva lawyers who were not even present, who were not even charged.” He continued “This is a Chief Justice acting under the Alliance Government. When your very throne of the judiciary, the base of the judiciary, acts in such a manner then the whole judiciary seems, or gives the impression, that it is cracking up.” The respondent then turned his attention to the Court of Appeal, again misrepresenting the position by stating “Now you have three judges sitting, two of them are appointed from New Zealand. They are also retired judges. Yet they are brought over by the Chief Justice of Fiji who is president of the Court of Appeal. Their future appointments in sessions depend entirely upon him.” And he continued “What is the position when a judgment of his goes up to be decided by these gentlemen from New Zealand or locally retired judges.” The respondent concluded his speech with the assurance “These all gentlemen are different aspect of the judiciary which needs cleaning up. And if you vote NFP into power, judiciary will be cleaned up once and for all.” We have not referred to all that the speech contains but only to the more material portions.

The pamphlet, which was distributed on the 13^th day of April 1972, reads

“IT WAS UNDER

THE ALLIANCE

GOVERNMENT THAT TWO SUVA LAWYERS WERE

CONDEMNED IN ABSENTIA IN A COURT OF LAW.

VOTE FEDERATION

FOR THE PROTECTION OF YOUR

FUNDAMENTAL HUMAN RIGHTS.”

It is clear that this pamphlet refers to the same judgment of the Supreme Court as that referred to in the respondent’s speech; and the meaning to be attached to its contents, which we are satisfied the respondent intended, is that the Court is subservient to the government of the day and that under that government the Court denies the citizens of Fiji their fundamental human rights.

There is overwhelming evidence in the speech taken as a whole and in the pamphlet that the respondent maliciously misrepresented the position and attacked the Judiciary with the direct object of lowering the reputation and authority of the Court in the eyes of the public. We are fully satisfied that, smarting under judicial admonition, he used a political forum and a political pamphlet as cover for an intentional assault on the Judiciary.

The respondent, a practitioner in the Courts of Justice and an officer of this Court, saw fit to deliver a speech and to authorise the publication of a pamphlet containing matter scurrilously attacking the Chief Justice and imputing improper motives on the part of those responsible for the administration of justice in Fiji, well knowing that the Judiciary cannot, in the ordinary course, reply to criticism. He could not have been unaware that the lay public, to whom he addressed himself, would assume that by virtue of his profession he would be knowledgeable on matters of which they would be ignorance and that his audience would place credence on his pronouncements, resulting in an undermining of the confidence of the public in the administration of justice. His speech and pamphlet fall squarely within the category of publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial officer (per Rich J. in R. v. Dunbabin Ex parte Williams supra at 442.)

We have come to this conclusion after having given careful consideration to the contents of the respondent’s affidavit and the submissions of his counsel; and after an examination of various authorities including In re Wallace [1866] UKLawRpPC 18; (1866) L.R. 1 P.C. 283; Mc Dermott v. Judges of British Guiana (1868) 16 E.R. (P.C) 590; In The Matter of a Special Reference from the Bahama Islands [1892] UKLawRpAC 50; (1893) A.C. 138; McLeod v. St. Aubyn [1899] UKLawRpAC 33; (1899) A. C. 549; R. v. Gray [1900] UKLawRpKQB 63; (1900) 2. Q.B. 36; R. v. Davies [1905] UKLawRpKQB 174; (1906) 1 K.B. 32; R . v. Nichollas [1911] HCA 22; (1911) 12 C.L.R. 280; Bell v. Stewart (1920) 28 C.L. R. 419; R. v. Editor of the New Statesmen Ex parte Director of Public Prosecutions (1928) 44 T.L.R. 301; R. v. Fletcher Ex parte Kisch [1935] HCA 1; (1935) 52 C.L.R. 248; Ambard v. A.G. of Trinidad and Tobago (1936) 1 All E.R. 704: Mullery v. R. (1957) E.A.C.A. 138; and R. v. Metropolitan Police Commissioner Ex parte Blackburn (1968) 2 All E. R. 319.

We have also taken into account the circumstances in which the speech was made and local conditions.

We are in no doubt that the respondent is guilty of a gross contempt of Court; a contempt which the respondent in his affidavit and through his counsel attempted to justify. Towards the close of his counsel’s final address a belated and qualified expression of regret was preferred but there was no retraction, no proper apology and clearly no remorse.

The Court orders and adjudges that the respondent is guilty of contempt; that he be committed to Suva Prison for the space of six months and that he pay the costs of these proceedings.

Chief Justice
Judge
Judge

At Suva
9^th May, 1972