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Criminal defamation:
the alternate proposal She is obviously unaware that as recent as April 1998, 14 years after the Law Reform Commission report, the Supreme Court of Canada held in Lucas v R that "defamatory libel is a justifiable limit on expression and therefore constitutional (see Speaking Freely; Expression and the Law in the Commonwealth, edited by Robert Martin, professor of Law, the University of Western Ontario.) Also, despite the commission's recommendations that the offence of seditious libel be also removed from the Criminal Code, the offence remains because according to the Supreme Court, that law does not seek to limit expression but to "punish the creation of a serious threat to public order." Ms Pinto-Jayawardena goes on to say that the British Law Commission, in its report of 1994 recommended repeal of criminal libel. She does not, however, refer to the conclusion of the Faulkes Committee on Defamation in 1975, that criminal libel "provided a useful extra remedy in certain special categories of libel and in any case, there was nothing better with which to replace it." (see Law and the Media; An everyday guide for professionals. Tome Crone, Focal Press, Oxford, 1995.) The R. K. W. Goonesekere Committee Report on the reform of laws affecting media freedom and freedom of expression recommended repeal of Section 479 of the Penal Code as well as an alternative to repeal. It came to that conclusion after having considered recent instances of prosecutions for criminal defamation and considerations that would appear to influence the Attorney General's sanction for a prosecution. Also, it considered the possibility that a prosecution could discourage criticisms of government ministers and policies or the expression of political dissent. Having been a member of that Committee, I am aware of the discussions that led to the recommendation and the alternative to it. The alternative is to vest the decision whether to indict or not with a judge of the High Court with guidelines as in the English law of libel Amendment Act 1888 Section 8. The judge would grant leave to prosecute only if "there is a clear prima facie case of serious libel for which the public interest requires a criminal prosecution." The alternative proposal also recommended provision for the accused to be heard. Such a procedure has an advantage over the procedure where the Attorney General decides without hearing the accused. I am told that a British High Court judge has much wider judicial experience than a Sri Lankan High Court judge. That being so, the decision whether to indict or not could be vested in a three-judge bench of the Court of Appeal with provision for the accused to be heard. Ms Pinto-Jayawardena's statement that "developed jurisdictions across the world either do not have or do not use the offence of defamatory libel" implies that this is a finding of hers after having made a study of such "developed jurisdictions". However, the Article XIX publication 'Press Law and Practice; A Comparative Study of Press Freedom of Europe and Other Democracies' published for UNESCO in March does contain information of some such democracies which provide for civil action for defamation as well as laws where defamation is also a criminal offence punishable by fine or imprisonment. (i.e.; Australia, Austria, France, Germany, the Netherlands, Norway, and Sweden.) To remove criminal
defamation from the Penal Code would oblige persons aggrieved by
false publication alleging the commission of a criminal offence
or by other forms of malicious falsehood to resort to civil defamation,
which in Sri Lanka, is both expensive and dilatory. The Government
should, therefore, review its decision to remove the offence of
criminal defamation from the Penal Code and heed the Goonesekere
Committee recommendation of an alternative on the UK lines. Kishali Pinto-Jayawar-dena replies: While Mr Gunewardene is entitled to his own opinion of what exactly I am aware or unaware of, certain of his comments call for clarification. Firstly, Mr Gunewardene errs when he imputes to me the statement that the Canadian Law Commission "established" beyond all reasonable doubt that the crime of defamation in the statute books does not actually protect reputations of "good and honest citizens" from character assassination. What I actually said was that the Canadian Law Commission recommended repeal of the law of criminal defamation and proceeded to give good reasons for their recommendations. There is, of course, a world of difference between the recommendations of a Law Reform Commission and their actual implementation. I analysed the thinking of Law Reform Commissions of Canada, Britain and New Zealand and did not discuss case law primarily due to lack of space. It is for this reason that the Canadian case of R v Lucas (1998 1 SCR, 439) -or indeed any other case at all - was not referred to, the one exception being Gleaves v Deakin (1980, AC, 477), which was cited only for its specific referral by the British Law Reform Commission in 1994. If, on the other hand, case law is being cited, then it must be in its proper legal context. Mr Gunewardene quotes from R v Lucas (taken from a text book) and argues accordingly that defamatory libel has been held to be constitutional in developed jurisdictions and that therefore the offence - as it is in the Sri Lankan penal laws - should be retained subject to greater procedural safeguards. Obviously, Mr Gunewardene has not read R v Lucas in its legal context (see above for specific case reference). The case dealt with the constitutionality of Sections 298, 299 and 300 of the Canadian Criminal Code which are substantively different from the corresponding provisions of the Sri Lankan Penal Code and specifically imposes stringent conditions of an intention to defame on the accused. The question as to whether mens rea or intention to defame existed in the facts of that case, occupied the mind of the Court in great detail and was the reason, in fact, that a majority judgement was delivered. Even in that very different sense, the judgement has been strongly critiqued by Canadian jurists as contrary to the Canadian Charter of Rights and Freedoms. (See Paul B. Schabas, Media Freedom under the Charter, Special Lectures on Constitutional and Administrative Law, Law Society of Upper Canada, 2000; Also Anand, S.S., "Case Comment: R. v. Lucas", (1998) 14 C.R. (5th) 279-282.) Meanwhile, citing contrary national and international case law that has wholesale rejected the criminalisation of defamation lends itself to a different discussion than at this point of time. Secondly, Mr Gunewardene finds fault with the fact that the article did not refer to the 1975 Faulkes Committee Report in the United Kingdom. As was already pointed out, my analysis was strictly limited to the reports of Law Reform Commissions and I did not discuss findings of other committees. If, however, one cites the Faulkes Committee Report, then one should also refer to the far more recent Supreme Court Procedure Committee Report on Practice and Procedure in Defamation in the United Kingdom (1991) which went further than the British Law Commission and opted for wholesale repeal of the offence. A wider discussion cannot be selective. Thirdly, the statement that "developed jurisdictions across the world either do not have or do not use the offence of defamatory libel" was certainly not mine nor was there any implication to that effect as a more deliberate reading of the article would indicate. This was a statement made by the Canadian Law Commission in 1984. That statement still holds good, despite the fact that many developed jurisdictions retain the offence as Mr Gunewardene takes pain to point out. The point is that actual use of penal provisions is extremely rare. The offence
of criminal defamation must be either abolished (as was unequivocally
the first preference of the R. K. W. Goonesekere Committee even
though Mr Gunewardene now prefers the alternative) or redefined
substantially. This has been accepted as necessary by international
human rights law standards (see the July 2000 Article XIX publication
"Defining Defamation; Principles on Freedom of Expression and
Protection of Reputation" which is available on the Article
XIX website.) Providing procedural safeguards for its application
would not take away the obnoxious features of the offence as it
presently exists in the Sri Lankan Penal Code. This is why Mr Gunewardene's
alternative is fundamentally deficient and must be rejected. |
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