The accused in this case is indicted with having committed the offence of defamation under section 479 of the Penal Code and/or under section 15 of the Press Council Law.
Upon the close of the prosecution case, the learned President's Counsel for the defence made an application in pursuance of section 200 of the Criminal Procedure Code that the accused be discharged. The grounds of the application are three fold: (a) that the relevant words complained of are not per se defamatory (b) that the intention to defame is not established and (c) even assuming, for the sake of argument, that ingredients (a) and (b) above are proved - yet the prosecution evidence does not suffice to prove that the accused directly had any connection or had a hand in the publication of the relevant article. I shall deal with the three points raised by the learned President's Counsel in order.
Firstly, it is somewhat naive to argue that it is not defamatory to allege, as had been done in the article or the words in question, that Her Excellency the President in attending a party was on her guard against being observed and warily adopted a secret means of approach and "used the rear entrance" of the hotel in question to gain entry thereto. I am afraid that that is the sense in which any right thinking and ordinary reasonable man would understand the following excerpt from the relevant article.
To quote: "the place was Mr. Perera's permanent suite at the five star Lanka Oberoi. But this time the President was more circumspect about her appearance and used the rear entrance of the hotel, watched by a phalanx of security guards and myself". It is to be observed that the article impresses on the reader the time of the night at which Her Excellency so entered the hotel. The time is given as half hour past the middle of the night. The article in addition, refers to at least, five other parties held in different locations but in none of those cases (parties) had the time at which they were held been mentioned.
It is clear as clear can be that the fact of the time at which the President was alleged to have come to the party is deliberately over-emphasized in order to artfully impress, on the reader, if not directly, at least by necessary innuendo, that it offends against the recognised code of propriety for a lady to be abroad at that hour and by stating that the President left only at 2.00 a.m. the reader is made to wonder whether she couldn't have chosen a more decent hour to get back home.
This matter cannot be considered in isolation or in a vacuum, so to speak, and the President's conduct in arriving and leaving (a party) at the times mentioned in the article has to be necessarily considered against the background of the social mores of the country and no one would think any the better of Her Excellency if her conduct and behaviour were such as that alleged in the relevant article. Rather the reader will certainly think the worse of Her Excellency upon reading the article for the article suggests that Her Excellency was to say the least, somewhat immoderate in indulging her tastes.
It is to be remembered that according to the article this is not the only occasion of its kind when the President enjoyed herself for the article says: "But this time the President was more circumspect........." The writer, whoever he may be, had designedly chosen expressions and words such as the "heat of the silent night", that is a night marked by warmth of feeling accompanied by no sound or speech, and wrapped in mystery and "Epicurean tastes" of Her Excellency which are redolent of and create an atmosphere of sensuous enjoyment however aesthetic, perhaps, the enjoyment may be. (In this regard, it would be germane to remind ourselves that it was Epicurus who taught that calmness of mind induced by pleasure in its most refined form was the highest good that one should aim at.)
The excerpt or the statement: "But this time the President was more circumspect about her appearance and used the rear entrance of the hotel......" is in the context, is clearly suggestive of the fact that Her Excellency herself was conscious of the error of her own ways which prompted her to be discreet in entering the hotel thus protecting herself from observation, as alleged in the article.
Image of the President thus projected is that she is one who would like to do things or does things on the sly pointing to lack of moral courage. These things have not been said in so many words but these are the reasonable inferences that can legitimately be drawn by any reader of average discernment.
Higher the eminence or greater the stature of the person to whom the defamatory statement relates the more injurious is the statement liable to be. If such a thing had been said about a schoolboy or a menial, that is, if it had been stated that he adopted such a means of entry, it wouldn't have been considered that it was even worth remarking on it and most probably would have gone un-observed, because neither of them have any eminence to speak of. In the case of the schoolboy it would have been perhaps, put down to a schoolboy prank and in the case of the menial, perhaps, it would have been thought that that is the mode of entry that befits him most.
Further I fail to see any relevance in the observation as regards the mode of entry to the hotel alleged in the article to have been chosen by the President except to subject her to ridicule.
The statement that Her Excellency the President chose to enter the hotel by the rear entrance is particularly belittling of the President if for no other reason than that she is the Head of the State and people expect higher norms than that to be kept and observed by a person in such an exalted state and not act in a cringing and crouching manner lacking in openness.
The mode of entry can, against the background of other facts, be very revealing and as a general rule the mode of entry chosen by a visitor to any place can invariably reflect on the dignity of a visitor if thereby the impression is created that the visitor aims at concealing the purpose for which he or she enters as the same (purpose) would not bear close investigation or is not above board as is shown by the following passage or excerpt: "He that entereth not by the door into the sheepfold but climbeth up some other way, the same is a thief and a robber." - St. John X, 1. There are ways and ways of entering a place and the one alleged, and that falsely, to have been chosen, by the President is certainly contrary to the dictates of honour and one most subversive of the self-respect of the President of a country particularly in the light of the reasons which are obliquely hinted at as being the reasons which prompted the President to choose that mode (of entry).
In brief, the relevant excerpts, in fact, are a typical example of a defamatory statement, for cumulatively they have a tendency to reflect on the moral excellence of the President for it imputes to the President dishonourable or improper conduct for the quintessence or the import of the statements, contained in the article, regarding Her Excellency the President was that she chose to enter by the rear entrance in order to screen her improper conduct of attending a party at an un-godly hour, not becoming of a lady. In deciding whether these relevant statements - are defamatory the criterion, as stated above, is the view which would be taken by the ordinary, decent, sensible person but in applying that criterion, especially in the circumstances of this case, due regard must be had to the public opinion, usages and traditions of our country, more so as the person to whom the statements relate is the Head of the State - representing, in a formal sense, the people as their head.
With regard to the second point, that is, the matter of the intention to harm the reputation, it is germane to point out that it has been held in a case reported at page 1248 of "The Law of Crimes" Thakore (18th Edition) that "everything printed or written which reflects on the character of another and is published without lawful justification or excuse is a libel whatever the intention may have been". This statement of the law is quite understandable for the intention must be gleaned from the language, there being no other criterion or factor, than, perhaps, publication or dissemination itself, from which it (intention) can be fathomed or inferred.
The argument of the learned President's Counsel for the accused was that even assuming for the sake of argument, that the words are defamatory - yet the writer, whoever he may be, had no intention to defame. One fails to fathom his reasoning for how can one say that the writer had no intention without disclosing who the writer was or without identifying the writer for the learned President's Counsel does not identify the accused as the writer and how can one get an insight into the intention of an un-identified writer except from the language itself or the things said by the writer, which, in this instance, are defamatory, as has been shown above. Where the words are prima facie defamatory, as in this case, and if the accused intends to set up the defence that the words bore a non-defamatory sense and assign some particular non-defamatory meaning to them (words) and allege the special circumstances which he relies upon as supporting that (innocent) meaning it is not enough for his counsel to merely say from the Bar, that in the circumstances in which they were published the words bear a non-defamatory meaning.
The stance of the learned President's Counsel in regard to these matters is not as definite as one would have wished it to be and is as fluid as fluid can be but what the learned defence counsel seem to be saying it that, if I had understood him (or them) correctly, the writing in question represents humorous, gentle, light banter marked by pleasantry said more or less in jest and not meant seriously or in earnest. Assuming that this is so, it is the writer if he be the accused, who must say so in evidence or at least, in a statement from the dock and not his counsel for a counsel's submissions do not attract to itself the weight of evidence and cannot be treated as such. I think even in civil law a jest will only avail the defendant only if the circumstances in which they were uttered show, not only that the words were used as a joke or jestingly but also that they were understood as such by the readers.
But the learned counsel (both defence counsel who addressed the court) failed to give any convincing reason to show that it is apparent from the circumstances in which the publication was made that the words were not intended and could not reasonably be understood, to be used in a defamatory sense. The writer, whoever he may be, must be taken to have meant what he said and said what he meant particularly when the writer vouches for the veracity and accuracy of what he said by saying (in the article itself) most solemnly that he himself was an eye-witness to the President entering the hotel by the rear entrance - which avowal or affirmation on his (writer's) part (to that effect) is now shown to be fictitious, if not false.
I have shown above that the words bear a defamatory significance. As such it is not open to the writer or the publisher to say (as the defence counsel did argue) that even if the words were defamatory the writer did not intend thereby to harm the reputation. If such an argument is accepted then, by analogy, "X" who pushes "Y" over a cliff, because the presence of "Y" for some reason is inconvenient to "X" to what "X" realizes is certain death (of "Y") should also be allowed to say that "X" did not intend the death of "Y" and all that "X" desired was temporary removal of "Y" from the scene because "Y" was obstructing the view of "X". It is clear that such an argument cannot succeed for the rule is most clearly expressed in the law that a consequence foreseen as the certain result of the actor's conduct is, in law, taken to have been intended.
The essence of the offence of defamation is the intention to harm reputation or the knowledge on the part of the accused that the defamatory imputation would harm the reputation of the person concerning whom the publication is made and that necessarily requires publicity to be given to the imputation. And a newspaper, conceivably is one of the means affording facility for the widest publication. I am inclined to think that publication of a defamatory statement is even stronger, if not final proof of the intention to harm the reputation than even the defamatory matter or words themselves. In other words, the intention to harm reputation can be more readily inferred from publication than from the defamatory language itself for if one makes a defamatory composition yet refrains from dissemination or publication, that will rather negative than prove intention to injure the reputation. As had been stated at page 4127 of Penal Law in India (10th Edition) - Gour: "newspaper is a commodity printed for the purpose of being read and it can be presumed that it was so read".
To sum up, what is stated above would serve to show that the prosecution evidence is such as to establish convincingly and to a moral certainty all the ingredients of the offence of defamation which, in the context of this case, may be broadly stated as follows:
(a) making or publishing an imputation concerning Her Excellency the President
(b) by words intended to be read
(c) that the publication was made with the intention of defame or the requisite knowledge whoever may be responsible for the publication.
And perhaps, the only ingredient, if I may call it so, that had not been proved to the same degree of certainty, that is, to a moral certainty, is the personal connection or the instrumentality or the conscious participation of the accused, if I may put it that way - although it can rightly be said that even in regard to that matter, viz. the association of the accused with the offence in question, the evidence placed before the court as at the stage of the close of the prosecution warrants the fastening of, at least, presumptive criminal liability on the accused for no other reason than that he is the editor of the newspaper in which the relevant publication had appeared. When a newspaper is printed in a particular press the court may legitimately presume that the editor had a hand in the printing and was aware of its contents. When the prosecution evidence warrants the apportioning of such strength to the prosecution case as I have described above, it can by no means be said that the prosecution evidence is "wholly discredited". In terms of section 200 of the Criminal Procedure Code the Judge shall record a verdict of acquittal, to use the words of the section itself, only if "the Judge wholly discredits the evidence".
It is plain as a pikestaff that, at first sight itself, based on the first impression of the evidence adduced by the prosecution, as at the stage of the close of it, there is to say the least, a prima facie case against the accused. In that state of the evidence no one can say that the prosecution evidence is "wholly discredited" - which means discredited entirely or absolutely and beyond redemption.
Section 200 of the Criminal Procedure Code itself under which the learned President's Counsel has moved court to acquit the accused states thus: "If however the judge considers there are good grounds for proceeding with the trial he shall call upon the accused for his defence." The fact that there is a prima facie case against the accused, as explained above, I consider to be a valid and good ground for proceeding with the trial. I am spared the necessity of expounding what, in fact, is meant by the concept of a "prima facie case" for it has been lucidly explained in an excerpt of a judgment reproduced at page 1103 - Bindra on Interpretation (7th Edition) as follows: "The evidence discloses a prima facie case......It only means that there is a ground for proceeding............" It is remarkable that the words which occur in the said judgment, to wit: "ground for proceeding" is the very expression that occurs in section 200 of the Criminal Procedure Code as well. To proceed with the quotation: "But a prima facie case is not the same thing as "proof" which comes later when the court has to find whether the accused (in a trial) is guilty or not guilty. "Proof" is nothing but belief according to the conditions laid down in the Evidence Act, and it is an obvious fallacy to say that because the Magistrate has found a prima facie case, therefore he believes the case to be true in the sense that the case is proved."
For the foregoing reasons I make order, as I am bound to do, in terms of the very section, under which the learned President's Counsel for the defence moved that the accused be acquitted, calling upon the accused for his defence - for section 200 ordains that the "he (the judge) shall call upon the accused for his defence when there are good grounds for proceeding with the trial".
Signed:
U.de Z. Gunawardena
High Court Judge
Colombo.
23.05.1996.
The trial began on March 8 and was heard on April 4, 22, May 15, 23.
The next date of trial is June 7
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