• Media motion put off again
• Lion Air crash claims not paid yet
• Minister Dissanayake warned and discharged
• MP to complain over alleged assault
• Trial Judge ignored the reference to 'Birthday Party'
• Dep apointed as PC
• Acquitted and discharged
• SC orders Censor to talk to Editors on censorship
• Meeting with Ariya tomorrow
• Apita kekiri
• Seva Vanitha probe without key players
• 3 - Kid daycare centre
• Rice farmers in boiling pot
• Sun, surf and the stink
• Drinks and fags: more barks than bites - PARLIAMENT
• Starving cattle of east
• Expressway bogged down in political meddling
• UNP to bring in 8,000 polls observers
• Sangha parley to deal with reforms
• Japan awaits word on Norochcholai
• Retired colonel gets Rs. 3m as damages
• Maligawa pirith for PM's milestone
• Fishy formalin surfaces again
• Suppiah's sacrificial act saves child
• SLMC to go it alone: Rauf Hakeem
• Human smuggling across Palk Straits
• Rotten deal for quality conscious fish eaters
• Devolution perspectives as many see it
• Goods & Services tax on Shell: another flare-up over gas
• Apparitions draw hundreds to Katana
• We are yet to exhaust all the chanda gundus - Countdown
• Lanka beware of foreign powers
• US to curb gay harassment
• Sydney goes through mood swings

Media motion put off again

After repeated postponements the Government once again put off for August 11 the Media Reforms Motion calling for more liberal media laws.

The all-party motion which was to be taken up for debate last Friday was postponed on a request by Acting Media Minister Anura Priyadarshana Yapa on the basis that the time was not opportune for such a debate.

He also claimed that some members of the opposition had agreed to postpone the motion, but did not name them. At the party leader's meeting on Thursday, the Government promised to complete the work of the All-party Select Committee on Media Law Reforms, which has been sitting since 1998.

The Speaker had in August last year requested the Committee's Chairman, Media Minister Mangala Samaraweera, to complete deliberations and make recommendations in six weeks, but a year has lapsed since.

The motion calls for the abolition of criminal defamation, the replacement of the Press Council, the introduction of a Freedom of Information Act and the enactment of a Contempt of Court Act.

The motion signed by MPs from the Government and the Opposition was tabled in Parliament in October last year by Opposition Leader Ranil Wickremesinghe and seconded by former LSSPer Vasudeva Nanayakkara.

Lion Air crash claims not paid yet

It has been nearly two years since Lion Air flight 602 went missing with 54 persons on board over the seas off Mannar but grieving family members are yet to receive the insurance money they are entitled to.

Each passenger on the ill-fated flight was insured for US$ 5,000.

A spokesperson for the Sri Lanka Insurance Corporation said the delay was caused by family members failing to submit necessary documents in proper order as well as the problems caused by the application of different laws.

He said as many of those killed were from Jaffna there was confusion as to whether they were governed by the Roman- Dutch law, the Thesavalamai, the Kandyan or Muslim law. A questionnaire sent out to the next of kin of the missing passengers in June this year asked for such details as well as names and ages of all the immediate family members.

Minister Dissanayake warned and discharged

By Ayesha R. Rafiq

The Supreme Court this week in discharging Sports Minister S.B. Dissanayake of charges of contempt of court warned him to be careful when commenting about the judiciary.

While the court held that it did not see any bad intention in the public speech made by the Minister, it held that persons of authority should be mindful of their comments regarding the judiciary.

Minister Dissanayake was discharged after being warned by the Supreme Court to be careful when commenting on the judiciary. He was summoned before the Supreme Court on contempt of court charges for his comments in a public speech in February this year that if the government could not obtain a two thirds majority to implement constitutional reforms the courts would be closed and if any judges disagreed with this they could go home.

After The Sunday Times first reported his speech the Supreme Court judges were considering whether the Minister should be charged with contempt of court but the Minister subsequently issued a press release stating that his comments were distorted by the newspapers and that he did not mean any disrespect to courts.

Counsel for the Minister Mr. Faisz Mustapha said the Minister's comments were purely a vision for constitutional reforms.

Chief Justice Sarath Silva however said the Minister did not have the right to misbehave. He said a senior Cabinet minister should be careful when commenting about the courts as such comments by a senior minister could have an impact on the functions of the courts and there has to be respect for the institution.

Mr. Dissanayake's counsel told court that the Minister meant that the process of introducing a new constitution would be hampered by the lack of a two-thirds majority in Parliament and as such he was suggesting the adoption of a constituent assembly by closing Parliament temporarily. The constituent assembly would enact a new constitution and until such time the courts would be closed. What he meant by saying 'if some judges do not agree with the new constitution they can go home', was that after the constitution is enacted, the judges will take a fresh oath and function or have the option of retiring.

President of the Bar Association Mr. Upali Gooneratne P.C. sought permission to intervene and assist in the rule, but the Court said that as the respondent is not a member of the unofficial Bar and since the Attorney General was appearing as an amicus curiae, it was not necessary for the BASL to intervene.

MP to complain over alleged assault

A dispute over recent crossovers and criticism of the Opposition UNP leader developed into fisticuffs on Friday evening — and an MP has vowed to take the matter to the notice of the Speaker.

On Friday when the condolence vote on late E.L. Senanayake was being debated, a different drama unfolded in the MPs lobby area, according to parliamentary sources.

Badulla District UNP Parliamentarian Lakshman Seneviratne is alleged to have assaulted UNP dissident Ariyapala Walpitagama after an exchange of words over the latter's remarks in television interviews, heated up.

When contacted, Mr. Seneviratne admitted that there was a serious verbal clash, though others including a few UNP legislators confirmed that the confrontation descended to physical levels.

Mr. Walpitagama when contacted admitted that he weathered a few blows and said that he would take this matter up with the Speaker as a privileges issue.

Order reserved in The Sunday Times appeal case

Trial Judge ignored the reference to 'Birthday Party'

The trial judge totally ignored reference to the fact that the allegedly defamatory gossip column referred to the President 'gracing' a 'birthday party' and instead examined his own paraphrased article which suggested the President and Asitha Perera spent 90 minutes together in the heat of the silent night enjoying epicurean tastes, said Mr. Tilak Marapana, Senior Counsel for The Sunday Times editor in the criminal defamation appeal against his conviction by the High Court.

While the court may objectively conclude that the article is defamatory, court must also ascertain the intention of the accused to defame by publishing the article, Mr. Marapana told the Court of Appeal.

He was arguing against the conviction of The Sunday Times editor of criminal defamation of President Chandrika Kumaratunga by way of an article which appeared in the gossip column of the paper. The article reported that President Kumaratunga had attended the birthday party of parliamentarian Asitha Perera at his private suite at the Hotel Lanka Oberoi, which later turned out to be incorrect.

Mr. Marapana told the Appeal Court bench comprising Justices Hector Yapa and P.H.K. Kulathillake that when convicting a person of criminal defamation the judge must consider whether it was the accused who made or published the article, and under section 479 of the Penal Code not only whether the article was defamatory but also the intention of the accused to defame by publishing the article.

'While the court may objectively conclude that the article is defamatory, court must also ascertain the intention of the accused to defame by publishing the article' Mr. Marapana said.

Counsel submitted that as the article was not clearly defamatory and there was a lot of ambiguity, there are phrases which have to be interpreted as to how the ordinary reader would understand it. He said when interpreting phrases such as 'Epicurean tastes', one must not seize upon the only bad meaning available and thus presume intention to defame, which is what the trial judge had done and which he is clearly barred from doing by law.

He told court that when the judge first gave an order at the trial stage when the defence submitted that there was no case to answer, the judge had called for a defence on the basis that readers may think it was unbecoming of a lady to be out at the ungodly hours mentioned in the article or for her to be cringing and crouching and entering the hotel through the rear entrance. In his judgment however he said the article had sexual connotations to it which was defamatory of the President. The trial judge has not examined the article properly but instead taken two or three phrases and examined them out of context to come to the defamatory meaning.

Justice Yapa: In the first situation the court had to decide if there was a need for a defence. In the second situation the court had to decide if the article was defamatory or not and had to examine it more deeply.

Counsel: But the trial judge can't give two different meanings to how a reasonable reader would understand the article.

Justice Yapa: Are you saying there are contradictions?

Counsel: Two different meanings can't be given as to how the reasonable reader will understand the article. The trial judge has been misled with regard to the meaning he has attributed to the article in his second order because he has examined the paraphrase and not the article. He need not have done this as the paraphrase was obviously defamatory. The paraphrase says 'the President spent 90 minutes in the heat of the silent night in Asitha Perera's private suite'. Naturally the reader's mind will run riot. But this is not how the writer has written the article.

Justice Kulathillake: You say the paraphrasing and the article are different?

Counsel: Yes, in the first order there is nothing mentioned of sexual connotation. The trial judge says the reader will get a bad impression of the President as phrases such as Epicurean tastes suggest that the President was over indulging her tastes.

Justice Yapa: When giving the judgment the article must be examined more minutely than when calling for a defence.

Justice Kulathillake: He doesn't even have to give reasons when calling for a defence.

Counsel: Then we wouldn't know how he saw the article. But meanings ascribed to it can't differ.

Justice Yapa: He has a heavier burden in the second situation.

Counsel: But the burden can't shift with regard to the character of the article. In the first order he refers to 'Epicurean tastes' as aesthetic, but in the second order the trial judge says this phrase has no other connotation other than implying that the President was in a sexually receptive mood.

Mr. Marapana said that in the phrase 'from 12.30 a.m. in the heat of the silent night until 2.00 a.m.' in the way it appears in the article the words 'heat of the silent night' was descriptive of the time period, but in the trial judge's paraphrase it looked as if the writer was describing the President's mood, which was totally different. Also the trial judge had not given one iota of consideration to the fact that the President was at a party. No one reading the entire article would attribute the phrase 'Epicurean tastes' to anything other than food.

Justice Kulathillake: You mean to say the omission of the word party changes the complexion of the article.

Counsel: Of course, if it doesn't mention the word 'party', then people might think she was alone with Asitha Perera.

Counsel submitted that the trial judge had said the article talked about none other than the President. But counsel said that in a matter of criminal defamation one could not distinguish between the President and any other ordinary person and one could not use different yardsticks. "If one does so, then even to say the President arrived somewhere in a Morris Minor is defamatory, but this is a lady who dances at Temple Trees during the curfew and orders roast duck on Poya Days, and therefore the article must be taken in that spirit, and cannot be seeing as lowering her estimation in the eyes of the people.

"When one compares this article to things that are written about Presidents, Prime Ministers, Attorneys General and Chief Justices, this is nothing. The editor has been accused of criminal defamation on an interpretation the trial judge has given the article.

"The trial judge had held that since the editor did not divulge the name of the writer, the editor wrote the article. But the Press Council law requires the journalist to be secretive of the source of information. The source can include the writer as well. The Press prohibited him from disclosing the source."

Justice Yapa: Did the editor make use of this privilege at the trial?

Counsel: He did not, but the law holds. When Ranjit Wijewardene refused to divulge the writer it could then be assumed that he was the writer.

Mr. Marapana said the when there is a publication of some allegedly defamatory matter, more than one meaning can be given. Assuming the trial judge gave the meaning that the reasonable reader would understand, the question whether that is the meaning the accused intended must be considered.

Justice Yapa: But the test is to see how the reader will understand it.

Counsel: But intention can only be established if it can be proved that the accused also understood it that way.

There is no malice between the accused and the President or between her and the newspaper's proprietor. These relationships are relevant because they go to negative intention, but the trial judge has not considered this and has caused severe prejudice to the accused.

Mr. Marapana submitted that if the article had been considered in it's proper context and not paraphrased it could not be seen as defamatory. The editor has been deprived of a fair trial because the complainant is the President. The case needs a reconsideration since the judge has not judged the article properly.

Additional Solicitor General Rienzie Arsecularatne who appeared for the Attorney General wished to make certain clarifications after Mr. Marapana concluded his submissions.

Mr. Arsecularatne said that although Mr. Marapana gave different reasons in the two orders, that was not correct.

Justice Yapa: If a judge gives reasons in the first order and additional reasons in the second order there is absolutely nothing wrong with it.

ASG: Yes. At this stage the first order was given, the trial judge had certain evidence before him. At the stage the judgment was given however he had more evidence before him and he has sought to interpret the material which was brought out during the defence case.

Justice Kulathillake: There is an added burden. He has to go into the totality of the case.

ASG: Yes. The defence evidence had strengthened the prosecution case and the judge said he had even less reason than before to judge that the article was not defamatory. He had the benefit of cross-examination of the accused. The trial judge has not differed from his view that the article is defamatory.

The ASG said that although Mr. Marapana had said that the same yardstick must be used whether it the President or someone else, that is not correct as if a beggar had, for example, entered the hotel through its rear entrance this could not be defamatory.

Justice Yapa: Are you saying that the position and status of the person matters?

ASG: Definitely.

Mr. Marapana said that if the word 'party' was taken off the article is defamatory.

The ASG submitted that the word 'party' is a cover and that the mode of entry is mentioned in the party the President attended but not in the other parties mentioned in the article and that the food and the other guests which are mentioned in the other parties are not mentioned in the party the President attended.

Justice Kulathillake: In fact, the imagination of the readers are called for when the article says, 'the reading public now has a fair idea of the first citizen's Epicurean tastes'. That would go towards proving intention as well.

The ASG cited Basu on the Indian Penal Code which said that to find out if the words used are defamatory the document must be read as a whole. He said that the heading of the article 'Anura: Sootin says courting days are here', which hints at romance, the phrases used, the mode of entry etc., must all be taken into consideration. If the article has the capacity to present such a picture, then it is defamatory.

Justice Yapa: Counsel said in the paraphrasing the trial judge had omitted the word 'party', which if used would have been favourable to the accused.

ASG: That is a reasonable omission. The word 'party' is just a cover as I have pointed out.

He said that although Mr. Marapana had said intention must be established when the article is ambiguous, there is no ambiguity in the article.

Justice Yapa: Are you saying the article is per se defamatory?

ASG: Yes.

Mr. Marapana said the source includes the writer and section 32 (1) of the Penal Code entitles the editor not to divulge the source. Therefore when the accused refused to disclose the writer he was claiming privilege.

Justice Yapa: The accused didn't say 'if I have to disclose the source I will have to disclose the writer.'

ASG: On the contrary, he said the source is different from the writer.

Mr. Marapana produced a gazette and said that according to that every journalist shall observe secrecy regarding the source of information.

But it must be pointed out that the gazette also says that the journalist shall observe this secrecy unless the person who gave the information authorises disclosure, the ASG said. He said the accused is also in breach of one of the conditions i.e. every journalists shall make every effort ascertain the veracity of the contents before publication, whereas the accused checked the veracity after publication. He also did not take any steps to correct any inaccuracy.

The court reserved judgment and said due notice of the delivery of judgment would be given to the relevant parties.

Dep apointed as PC

Additional Solicitor General W. P. G. Dep this week took oaths as a President's Counsel.

Mr. Dep who took oaths as an attorney-at-law in 1976 joined the Attorney General's Department as a State Counsel in 1978 and was promoted to Senior State Counsel in 1989. He was appointed a Deputy Solicitor General in February 1996 and was promoted to the post of Additional Solicitor General in October last year.

He also holds a Master of Arts Degree from the Colombo University and followed a post-graduate diploma course in International Law at the Institute of Social Studies in The Hague, Netherlands. In 1991 he was enrolled as a Solicitor of the Supreme Court of England.

Mr. Dep who is the son of former DIG A.C. Dep had his secondary education at St. Joseph's College where he represented the school in athletics, rugger and soccer, and later represented the Colombo University in rugger and cricket.

Acquitted and discharged

Former Pure Beverages Managing Director Ana Punchihewa was acquitted and discharged from the case filed by the Securities and Exchange Commission in the Fort Magistrate's court.

Mr. Punchihewa paid the due amount to the Commission and reached a settlement in the case connected to a share transaction.

Following the settlement the SEC withdrew the case which was pending for nearly four-years.

SC orders Censor to talk to Editors on censorship

By S.S.Selvanayagam

The Supreme Court this week directed the Competent Authority to meet Editors of national newspapers before July 29 to discuss the modalities of implementing the censorship regulations.

The Court comprising Chief Justice Sarath. N. Silva and Justices S. W. Wadugodapitiya and Priyantha Perera, made the order terminating the case after Deputy Solicitor Geenral assured court that the Competent Authority would meet the editors within ten days to work out modalities for the implementation of the censorship.

Earlier counsel for editors, R. K. W Goonesekere, told court that even though the old emergency regulations under which the petitioners had come to court had been withdrawn following the judgment in the Sunday Leader case, the new regulations, in some respects, worse than the old as it included "procurement of supplies" in the categories that were forbidden to the media to report on.

This was a prohibition that had been present only in the censorship regulations of 1996 but had been withdrawn twhen the media protested that it effectively inhibited the media from reporting on corruption in procurement of arms and equipment. Its re-inclusion in the new regulations issued this month was therefore surprising, Mr Goonesekere said.

He pointed out that, in any event, the guidelines released to the media by the Competent Authority under this month's regulations, did not clarify these matters and were, in general, vague and unsatisfactory. These guidelines had not been drafted in consultation with the Editors Guild and contrary to an express direction made by the Supreme Court when leave to proceed was granted by the Court in respect of the petitions presently before Court, he said. Following Mr. Goonesekera's submissions and the DSG's assurance, the Court directed that the Competent Authority meet with the editors for the purpose of working out a satisfactory implementation of the censorship.

The Supreme Court noted that it had already been decided in the Sunday Leader case that there was no provision in the Emergency Regulations in question providing for the appointment of the Competent Authority and on that basis, it had been held that the entire process of censorship that was carried out in terms of the regulations in issue in this case as well, had no effect in law.

In that case, however, the court did not declare that there had been any infringement of the petitioner's fundamental right.

The Supreme Court also stated that in view of the fact that prompt action was taken by the State to look into the matters in dispute subsequent to leave to proceed being granted in the present cases and in view also of assurances given by the Deputy Solicitor General that the Competent Authority would within ten days invite the editors to have a discussion in order to make clarifications and any necessary amendments to the guidelines that have been issued by him, no costs would be awarded to the petitioners. The applications were thereafter terminated.

R.K.W. Goonesekere with S. Hewamanne, J. C. Weliamuna and Kishali Pinto Jayawardena, instructed by Lilanthi de Silva appeared for the Editors Guild.

Ranit Abeysuriya appeared for The Sunday Times columnist Tassie Seneviratne while A.S.M. Perera and S.L. Gunasekera appeared for two other two petitions on behalf of the "Ravaya" and Deputy Editors of three national newspapers.

Meeting with Ariya tomorrow

Editors of national newspaper have been invited by Information Director and Competent Authority Ariya Rubesinghe for a meeting tomorrow to discuss the modalities of implementing media censorship under the amended emergency regulations.

Ten members of the Editors Guild of Sri Lanka together with deputy editors and columnists filed fundamental rights petitions in the Supreme Court, challenging the blanket media censorship imposed in May on war related news and any news critical of the Government or its ministers.

The censor's appointment was meanwhile judged to be null and void and of no force or effect in law in a fundamental case, where the Sunday Leader newspaper challenged the Competent Authority's right to seal its press.

Following the judgment in the Sunday Leader case the Competent Authority was reappointed under a new set of emergency regulations.

When the case was taken up on Wednesday the Deputy Solicitor General gave an assurance to court that the Competent Authority would within ten days invite the editors to a discussion in order to make clarifications and any necessary amendments to the censorship guidelines, which were hurriedly gazetted last week.

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