High court judge acted with prejudice — Tilak Marapana

The High Court judge acted with prejudice wrongly placing surmise upon surmise circumstantial evidence upon circumstantial evidence to come to what he called was his irresistible conclusion in finding that the Editor of The Sunday Times and nobody else was the writer of the gossip column which was allegedly defamatory of the President, Mr. Tilak Marapana P.C. Senior Counsel for the Editor told the Court of Appeal this week.

Mr. Marapana PC summing up for the Defence said the trial judge unfairly held that the Editor had given evidence contradictory to his statement to the CID when infact the Editor was only trying to explain the different meanings to the same words used in the newspaper world.

Merely because the Editor did not subscribe the trial judge's theorems, he calls it contradictory evidence.

The Editor of The Sunday Times is appealing against his conviction by the High Court of Colombo judge Upali de Z. Gunawardene where a gossip column published in the newspaper in February, 1995 was held to be criminally defamatory of President Kumaratunga.

The Court of Appeal bench comprises Hector Yapa J and H.N.S. Kulathillake J.

Mr. Marapana making submissions

Me Lords, I do not intend to take more than two days to reply the submissions of the Additional Solicitor General. I will confine myself to three issues only.

Firstly, whether it was the Accused who made or published this article, the second and third issues are inter-connected, whether or not the article is defamatory, and the intention of the Accused to have willfully defamed the President.

Not that I am abandoning the other areas. I am mindful of the fact that the trial judge has held that even if it is not the Accused who has written this article, the Accused was responsible for the publication of this article.

The trial judge has held that he has come to the conclusion that the Accused wrote the article by the evaluation of five factors. My contention is that none of these five factors are proven facts. In short, is this the 'irresistible conclusion', as the trial judge claims that one can come to say that the Accused wrote the article.

It is my submission that none of these five factors have been established. These are only surmises which the trial judge says proves that the Accused, and no-one else, wrote this article.

Let me take one point. The trial judge says that there is a reference to the phrase 'in the heat of the night' in an editorial and that it is only the Editor who writes the editorial.

My complaint is how does the trial judge say as he has, that 'it is an established fact' that the Editor wrote that editorial ? How does the trial judge jump to this conclusion without proving that fact ?

Kulathillake J: Each of the facts have to be proved ?

Mr. Marapana: And beyond reasonable doubt as well. Circumstantial evidence must be established by proven facts.

Yapa J: Each fact must be proved beyond reasonable doubt ?

Mr. Marapana: Yes. Merely because an editorial has the words ' in the heat of the night', that it was written by this Accused and this Accused alone must be proved as a fact. Otherwise the trial judge is only surmising. How can that be an established fact - and beyond reasonable doubt ? It is only when it is proved as fact that it can be used as a link to establish circumstantial evidence and only then that a trial judge can come to the irresistable conclusion that the Accused wrote the article.

That is only one point. Take another, for example the trial judge has used the Accused's statement to the police as an admission. He says that alone is not enough, and goes on to say that when one examines the accumulative effect of the five factors then one can come to the irressistable conclusion that it was the Accused who wrote the article.

I will now refer to the judgment of the High Court judge, where he deals with circumstantial evidence to come to the conclusion that the Accused wrote the article in question.

He is using the formula of circumstantial evidence upon circumstantial evidence, surmise upon surmise to come to the conclusion he has reached. What are they ?

He refers firstly, to the refusal of the Accused to divulge the name of the writer. That goes on from pages 21 to 40 of his lengthy judgment. The judge says the Accused did not divulge the name because he was the writer.

Then he says that the gossip column is written by one person and the Accused has admitted writing three paragraphs in this column. So therefore, he says the Accused wrote the entire article. Thirdly the trial judge refers to the phrase 'in the heat of the night' that appears in an editorial and fourthly that the Chairman of the newspaper, Mr. Ranjit Wijewardene did not divulge the name of the writer.

To use the judge's own formula then Mr. Wijewardene could have been the writer if he didn't disclose the name of the writer. When the publisher doesn't divulge the name of the writer that is also put on the head of the Accused.

Finally the trial judge says that there is a reference to the use of the word "myself" in the article - that the writer himself was a witness to what was written in the article.

What the trial judge has done is to examine each of these factors in five different ways and come to one conclusion that the Accused has written this article. So what we have is five totally different circumstances and then a conclusion that it is very suggestive that the Accused wrote the article.

The trial judge can't put into the basket different surmises and come to one irresistable conclusion.

The main item the High Court judge uses in coming to this finding of his is the Accused's statement to the Police, and the trial judge has come to a conclusion that the Accused admitted he wrote the article.

Yapa J : That is by his admission that the gossip column is written by one writer.

Mr. Marapana : Yes, because he has admitted writing three paragraphs in that entire column - the trial judge says the Accused told the CID that the column was written by one writer therefore he wrote the entire column.

My Lords, if it is proved, through evidence, either direct or circumstantial, that the gossip column is written by one person and there is an admission in court that the Accused wrote the three paragraphs you can come to an irresistable conclusion - but that fact that the gossip column is written by one person must first be proved.

The Accused's evidence in court is that several persons contribute to this one gossip column. One person composes the entire article. Reporters or writers may write a story either on their own information or on information provided by somebody else. Then one writer composes the entire column. He marries the different stories provided by different writers.

The word column can have different meanings. When one says the column has different writers it can mean that different writers contribute to the entire column. When it says it was one person it can mean it is one person who composes the entire column. These have different meaning at different times. The word column can have different meanings because a column can be one story, it can be all the stories put into one big column. It has still other meanings.

It is unfair to pin the Accused by saying he has given contradictory evidence when you look at the context in which the word is used.

The Accused has explained what he means by the different meanings of the word column. You can't construe that he admitted that the entire gossip column was written by one writer. How can you do that ?

All those explanations given by the Accused, have been ignored by the trial judge who goes on very unfairly to say the Accused has admitted that one person wrote the entire gossip column.

Kulathillake J : You mean he has used it as substantive evidence.

Mr. Marapana : Not only that he goes on to say that the Accused has admitted that the entire column is written by one person. The Accused has explained in court what he means by what he said that the column is written by one person.

The ultimate test is whether there is an admission by him, or whether there is proof that the column is written by one person.

From pages 42-102 of his order the trial judge goes in circles trying to say the Accused is the writer. The trial judge is wrong to say that the Accused gave contradictory evidence. The Accused is only trying to explain what he told the CID.

The Accused uses the word marrying these articles. He has explained the process of how the gossip column comes into print in a newspaper. He has explained how a newspaper works. None of these have been considered.

This portion of the judgment clearly demonstrated the prejudice of the trial judge. Nowhere is there an examination of the true position.

The trial judge says the Accused's evidence is hotch-potch. I don't know whether something else is a hotch-potch. Everytime the Accused says something different to the trial judge's theorem, the trial judge says that's a falsehood. He has not examined the Accused's evidence in an impartial manner, as a trial judge should.

My second complaint is that each one of these five independent items have not been properly evaluated. They have not been established as a fact.

The Accused has not revealed the name of the writer. So, is it the only conclusion you can draw from that he was therefore the writer.

He has clearly said that he does not want to let down his journalistic colleagues. If he was in contempt of court for not disclosing the name of the writer then he should be dealt with for contempt.

When Mr. Wijewardene doesn't say who the writer is why should this Accused be penalised. Afterall Mr. Wijewardene is also from the journalistic profession. The judge never compelled or warned either the Accused or Mr. Wijewardene to divulge the name of the writer.

Yapa J : Can you compel the Accused ?

Mr. Marapana : Even if they were compelled they probably would not have divulged the name of the writer. There is honour among colleagues. If the judge wanted to punish them for not divulging the name of the writer he could have done so for contempt of court, not to come to a wrong conclusion that the Accused wrote the article and punish him with the offence for which he is indicted.

Kulathillake J : When there is a prima-facie case shouldn't the Accused say who the writer is ?

Mr. Marapana : That is upto the Accused, but what I'm saying is therefore the trial judge can't come to some conclusion that therefore he and nobody else is the writer.

Yapa J : In the absence of any privilege can he withhold the name ?

Mr. Marapana : Then he should have been dealt with for contempt of court. There are Journalistic Codes which he would have wanted to abide by. That can't be used to come to some irresistable conclusion that the only conclusion is that he is the writer.

Yapa J : Are you saying that it is not a logical conclusion to come to ?

Mr. Marapana : Of course. How on earth can anyone come to the conclusion that because Mr. Wijewardene refused to divulge the name of the writer then it is the Accused and nobody else who wrote this article ?

Yapa J : The Accused could have divulged the name of the writer and exculpated himself.

Mr. Marapana : But he didn't want to. Yes, he could have given the name of the writer, but he chose not to.

Further submission were fixed for July 27 and 28 when Mr. Marapana said he would deal with whether the article in question is defamatory, or not.

Show proof of the pudding

Tough new regulations are being introduced to prevent traders from making excessive or misleading claims regarding their food products, an official said.

The regulations drafted by the Food control unit of the Health Ministry will provide for strict checks on claims made on food labels or through advertising, Chief Inspector S. Nagiah told The Sunday Times.

Consumer protection and other groups have in recent times called for new laws in Sri Lanka similar to other countries where there are regulations to monitor the claims made by food manufacturers.

Mr. Nagiah said that special teams in the food control unit would constantly monitor food products and advertisements in all media to ensure that customers were not cheated.

He said that in recent years, he had noted a particular brand of cooking oil that claims to contain all the requirements of a vitamin. Similar trends had also been noted in some brands of milk products.

In the United States and Canada, manufacturers of food products are required by the wide-powered Food and Drugs Administration to substantiate the claims they make.

Mr. Nagiah said the new regulations would be introduced within two months and provisions would also be made to receive and act on consumer complaints regarding false claims. He said new regulations were also being drafted to deal with the growing problem of genetically modified (GM) foods.

As a first step a ban would be imposed on the import of such products which are considered to be dangerous because world food researchers do not know yet what dangers such products would cause. He said steps were being taken also to check on the cultivation of genetically modified seeds or plants from abroad, because of potential dangers and the need to avert unnecessary import dependence.

Mr. Nagiah said his unit was co-ordinating measurers with the food and plant research divisions of the Agriculture Ministry to monitor any dangers from GM products or methods.

In Parliament on Thursday, socialist Vasudeva Nanayakkara alleged that two foreign based companies here might be using Sri Lanka for guinea-pig type research on mysterious banana plants which might be in the genetically modified category.

Upcountry veg rinsed in filthy water

By Leon Berenger in Nuwar Eliya

Certain unscrupulous businessmen in Nuwara Eliya are allowing their hired hands to wash vegetables in highly polluted waters before packing them up for transport to Colombo and other destinations elsewhere in the country.

Right at the entrance to this so-called 'flower city' of Nuwara Eliya runs a canal, which is perhaps the most polluted waterway to be found in the entire district.

It is into this canal that the bulk of the town's dirty water is diverted, not excluding human waste since most wayside shops, eating houses and boutiques and in some cases houses have conveniently turned their sewer lines into this waterway.

And it is in this same canal that thousands and thousands of kilograms of fresh vegetables uprooted from the many gardens and farms are washed on as a daily routine, and to hell with the law since the Municipal Council, with its health inspectors are barely 300 metres away.

The businessmen have found the canal to be a less expensive and easy means to get their produce washed before transport, or else they would have to spend extra to transport their produce to cleaner waters outside the town.

So they have opted to use the waters of the virtual cess-pit and the workers are left with little or no option but to obey orders. And this they do to the letter, but not before consuming a considerable amount of alcohol to fight off the nauseating and sick feelings in their bellies.

It is needless to point out that the consumption of foods which have been washed in such polluted waters could easily lead to dysentery and other bowel infections, and could even prove fatal among toddlers and children, medical experts warn.

They said it was pure madness that the local authorities in Nuwara Eliya were allowing such a practice for whatever reason and that it should be stopped without further delay and the offenders severely punished.

Shell's shells to end

By Tania Fernando

With the monopoly of Shell Gas Lanka ending in November 2000, and the entry of a new company with local collaboration, moves are underway to offer gas at less than the current market prices.

The public could see a new entrant in the market with a price most probably less than Shell Gas and with more benefits to the consumer.

The foreign company originating from Panama will begin operations in Colombo in November in collaboration with a leading auto gas company. It will be a 50/50 partnership between Mundogas and the local partner.

Director General of the Board of Investment (BOI) Thilan Wijesinghe said that Mundogas will be investing Rs. 800 million and their terminal will be located in Hambantota and gas will be piped in from the sea to the storage terminal.

"There is a possibility of gas prices coming down after the new entrant comes to the market", he said.

Meanwhile, a spokesperson for the local investor said that they are looking at introducing LPG at a price lower than what is being offered at present.

He said one of the benefits they are looking at introducing is cylinders in different sizes which could even be carried by a housewife. Another feature maybe where the consumer does not have to go to the station but where the company will have a door-to-door service.

They plan to have cylinders in four different sizes and will have five plants. Their terminal will cost about US$ 10 million, he said.

Meanwhile speculation has been rife that Shell Gas Lanka are planning a price increase with the devaluation of the rupee. But Shell dismisses these claims and says that it is subsiding the customer at the rate of Rs. 20.46 per domestic cylinder. In a press release, Shell Gas Lanka says it is doing the utmost to avoid increasing the price of LPG.However , in the event of the US dollar appreciating, it would hold discussions and there could be a price increase.

VIP's son isolated on doctor's orders

A top politico's son who was warded at a leading private hospital in Colombo was asked by the doctors to either leave or take a private room.

The patient warded at the Medical Intensive Care Unit (MICU) with dengue was surrounded with his entourage of bodyguards who were walking in and out of the MICU whenever they felt like it, even though there are limits on visiting hours and the number of visitors for each patient.

Although only one visitor is permitted at a time, there were always four to five people surrounding the patient, while the security guard of the hospital looked on helplessly. When another visitor on seeing this questioned the guard as to why she could not go in he said that he could not do anything about it.

Finally a doctor decided that it was time to put his foot down and requested the patient to either take a room so that the other patients don't get disturbed or make alternate arrangements. The patient was finally moved into a private room at the MICU and made to understand that a rule is a rule and applies to everyone.

Mayor scoffs at bid to oust him

By Laila Nasry

A resolution to oust Colombo Mayor Omar Kamil has been handed over to the Council Secretary — but the mayor is scoffing at the move.

The resolution is signed by three opposition members — Sunil Ananda Withanage, Milton Liyanage and Eric Chandrasena.

They have alleged mismanagement by the Mayor, by awarding tenders to relatives and not to the best bidder and generally acting contrary to the Establishment Code.

They are now awaiting a Special General Meeting which the Mayor is required to call within the next 14 days when they would table the no-confidence motion.

Councillor Sunil Withanage said if the mayor used any unfair methods to block the resolution, they would go to courts.

Mayor Kamil told The Sunday Times he was not concerned about the turn of events and would take his time in studying the resolution after he returned from the Asian Mayors' conference in Shanghai.

He said he believed he was not required to hold any special meeting within 14 days and he could reject the resolution if he thought it had no basis.

SLMC not present

Secretaries of PA constituent parties met yesterday aftenoon to discuss nominations for upcoming general elections.

Significantly, the SLMC was not represented at the meeting amidst report that the Muslim party may be planning to go it alone.

The party secretaries decided to meet again soon.

Are salary hikes on the agenda?

By Dilrukshi Handunnetti

A delegation of PA Parliamentarians including several Deputy Ministers led by Deputy Transport Minister Bennet Cooray is to meet President Chandrika Bandaranaike Kumaratunga to urge the immediate increase of public sector and armed services salaries by ten percent.

Deputy Minister Cooray told The Sunday Times that the recent increases of telephone, water, electricity and gas charges had caused a drastic rise in the cost of living and as the hikes had to be introduced from time to time, the best corresponding action that could be taken by a government was to give a salary increase to the public sector.

Sources said the government legislators felt embarrassed as constituents were very critical of the administration. Several Parliamentarians have also discussed in private that in the aftermath of a thumping salary increase for Parliamentarians, it seemed only fair to revise the salaries of public sector employees, the armed forces and the police personnel.

Unhealthy health account

By Chris Kamalendran

The salary cheque of the Colombo North Teaching Hospital in Ragama amounting to Rs. 20 million bounced this week as the account did not have sufficient funds to honour the cheque, hospital sources said.

The cheque had been sent for clearance to the Ragama People's Bank branch which in turn had sent the cheque to the People's Bank Taprobane branch which has the Health Ministry account.

The Ragama branch of the People's Bank had earlier paid the money to the Ragama hospital as it was a state cheque.

However the Taprobane branch had informed the Ragama branch it did not have funds to honour the cheque. The People's Bank confirmed that the cheque had been returned.

The Financial Director of the Health Ministry, Michael Fernando when contacted by The Sunday Times said there was a delay in depositing the funds at the Taprobane branch.

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