The Court of Appeal on Thursday heard the submissions on the revision application made on behalf of the Editor, The Sunday Times against the interim order of Colombo High court Judge U. de Z. Gunawardene in the criminal defamation action instituted by the Attorney General on behalf of Ms. Chandrika Bandaranaike Kumaratunga.

The Court of Appeal bench comprises Justice D. P. S. Gunasekera and Justice A. Ismail.

Tilak Marapana, PC, senior defence counsel for the Editor, supporting the application said that at the conclusion of the prosecution case in the High Court trial, the defence had asked for an acquittal without having to call for the defence on the grounds that the state had not proved its case.

The learned trial judge held that he would be calling for the defence, but in his lengthy order had already prejudged the case and used very strong words.

Mr. Marapana said the learned trial judge had held, to quote from his order "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 offense of defamation......

He said the learned trial judge had already held 1) that the article concerned was defamatory and 2) that the intention to defame was present.

These findings had been reached already even before the Editor and his witnesses gave evidence and counsel made submissions.

He has only left the third ingredient, i. e. whether the Editor is guilty or not, open but having already held on the first two ingredients at this stage he has put to rest the defence case.

He has to hold each of the ingredients only after the full trial.

The presumption of innocence is a constitutional guarantee the Editor is entitled to. These findings have been made before the defence has been heard. The Editor is not going to have a fair trial.

Deputy Solicitor General Rienzie Arsekularatne in his submissions said that the learned trial judge may have held that the article was defamatory and whoever wrote it had the intention to defame but he had not adjudicated as to whether the accused is guilty. He has left that adjudication for the end of the trial.

He said that there has been no illegality in the learned trial judge's order, there has been no prejudice to then substantial rights of the parties, nor has there been a failure of justice.

R. I. Obeysekera, PC, appealing on behalf of the aggrieved party in his submissions said that all the learned trial judge has done is to say that a prima facie case existed and he had good grounds to proceed with the trial. He has not made a finding against the accused.

He said that High Court actions will not be concluded if everyone makes applications like this and that it was bad for the administration of justice.

Following is the full text of the petition filed by the Editor in the Court of Appeal.

1. The Accused-Petitioner (hereinafter referred to as the Petitioner) was indicted before the High Court of Colombo on two counts.

The 1st count was that he did by the publication in The Sunday Times newspaper of the 10th February, 1996 of words that were intended to be read, namely, the following words that appeared under the heading "Anura" sooting says courting days are here":-

"Therefore, let's start at the top, about a party graced by none other than Her Excellency the President, Chandrika Kumaratunga. The occasion was the birthday of Liberal Party National List MP Asitha Perera (Well Mudliyar Chandrika - how?). The place was Mr. Perera's permanent suite at the 5-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."

"She spent about 90 minutes at the party, from about 12.30 in the heat of the silent night until 2.00 a.m. and, as for what she ate, we assure you; it was not food from the Hilton. The reading public now has a fair idea of its first citizen's Epicurean tastes. But what of her estranged brother?"

Publish such an imputation regarding Her Excellency the President of Sri Lanka with intent to harm her reputation or while knowing or Chandrika Bandaranaike Kumaratunga having reason to believe that such imputation would have her reputation and that he had thereby commit an offense punishable under Section 480 of the Penal Code.

The second count which was framed in the alternative to the first count was that an imputation about President Chandrika Bandaranaike Kumaratunga was made by the publication of the words referred to in count number one which were intended to be read, and published in 'The Sunday Times' of February 19, 1995, that the said imputation was published with intent to have the reputation would be harmed thereby, that the person who published the said imputation has committed an offense punishable under Section 479 of the Penal Code read with Section 15 of the Sri Lanka Press Council Act No. 5 of 1973 and that the Petitioner who was the editor of the said newspaper has therefore committed an offense punishable under Section 14 read with Section 15 of the said Press Council Law.

A certified copy of the said indictment is filed herewith, marked "P1" and pleaded as part and parcel hereof.

2.1. The Petitioner pleaded not guilty to both charges and the case proceeded to trial. The prosecution lead the evidence of five (05) witnesses, namely Ranjith Wejewardena, Asitha Perera MP, Simon Perera, D. Wimalaratne, and S. I. K. Waidyasekera and closed its case.

2.2. While the prosecution adduced evidence that the aforesaid words which constitute the subject matter of the charges against the Petitioner were published in 'The Sunday Times' and that the Petitioner was the editor of the said newspaper, no evidence was led to prove that it was the Petitioner who wrote or published the said words and/or of any intention on the part of the Petitioner and/or on the part of the person who wrote or published the said words to harm the reputation of Chandrika Bandaranaike Kumaratunga.

2.3. At the close of the case for the prosecution counsel for the Petitioner made an application that the Petitioner be acquitted in terms of Section 200 of the Code of Criminal Procedure Act. On the ground that the evidence given by the said witnesses failed to establish any of the charges against the Petitioner.

2.4. The said application was made on the following grounds:-

(a) The said words were not per use defamatory of Chandrika Bandaranaike Kumaratunga;

(b) The requisite mental element to establish a charge under Section 479 read with Section 480 had not been established; and that

(c) Even if 'a' and 'b' above had been established, it has not been established that the Petitioner either published or had any connections with the publication of this words.

2.5. Counsel for the prosecution and the defence respectively made both oral and written submissions in respect of the said application and the Learned High Court Judge reserved his order.

2.6. A certified copy of the entire proceedings is marked "P2" as well as certified copies of the written submissions filed by the prosecution and the defence marked "P3a" and "P3b" respectively are filed herewith and pleaded as part and parcel hereof.

3.1. The Learned High Court Judge made his order on the May 23, 1996 refusing the said application of Counsel for the Petitioner and calling for a defence.

3.2. In the course of his said order the Learned High Court Judge held, inter alia, as follows:-

"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 the President in attending a party was on her guard against being observed 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 is the sense in which any right thinking and ordinary reasonable man would understand the following excerpt from the relevant articles. To quote "the place was Mr. Perera's permanent suite at the 5-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 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 occasion 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 - emphasised 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 Epicures who taught that calmness of mind induced by pleasure in its most refined form was the highest good that one should aim at).

"The exempt 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 had done 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 inference that can legitimately be drawn by any reader of average discernment. Higher the eminents 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 school boy 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 has any eminence to speak of. In the case of the school boy it would have been perhaps, put down to school boy prank and in the case of the menial, perhaps, it would have been thought 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 robber. "St. John X.1.2 - 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 whom the statements relate is the Head of the State - representing the people as their head.

"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 unidentified 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 an 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 is 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 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 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 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 the 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" realises is certain death (of "Y") should also be allowed to say that "X" did not intend the death "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 offense 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 of 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 defamatory composition yet refrains from dissemination or publication, that will rather negate 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 offense 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 offense 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."

3.3. A certified copy of the said order is filed herewith, marked "P4" and pleaded as part and parcel hereof.

3.4 Being aggrieved by the aforesaid order of the learned High Court Judge, the petitioner seeks to invoke the revisionary jurisdiction of Your Lordships' Court on the following among other grounds as may be urged by counsel at the hearing of this application:-

(a) The said order is wrong, contrary to law and against the weight of the evidence.

(b) The learned High Court Judge has by his aforesaid order made evident the fact that he has already found the petitioner guilty of the charges against him and in the circumstances the petitioner has been deprived of the substance of a fair trial and the continuance of the trial before him would therefore be an exercise in futility.

(c) The finding of the learned High Court Judge that the said words are per se defamatory of Chandrika Bandaranaike Kumaratunga is perverse in that the said finding is not rationally possible upon the evidence adduced before him.

(d) The learned High Court Judge erred in holding that the said words were per se defamatory on the basis of what, in fact, were that which the learned High Court Judge perceived subjectively to be defamatory innuendoes while the said words were incapable of any defamatory connotation according to their grammatical construction and/or of giving rise to any defamatory innuendo on any objective analysis and/or construction of the said words.

(e) The learned High Court Judge erred in arriving at his finding on the basis that the words in question were defamatory because of purported defamatory innuendoes conveyed thereby in that the question of the innuendoes that were capable of being conveyed by the said words was irrelevant to the issues in this action and not a ground on the basis of which he was entitled to call upon the Petitioner for a defence in as much as the Petitioner was not charged by the indictment of having harmed the reputation of Chandrika Bandaranaike Kumaratunga by means of any defamatory innuendoes conveyed by the said words.

(f) The learned High Court Judge has, by laying undue emphasis on the fact that the virtual complaint held at the office of President of the country erred in law by failing to assess the evidence on the basis of the fundamental principle of law that all persons are equal before the law and entitled to the equal protection of the law laid down in Article 12 of the Constitution.

(g) The learned High Court Judge erred in the application of the standard of proof applicable to this case in that he failed to consider and/or give his mind to the question whether or not the words complained of were capable of a non-defamatory meaning.

(h) The learned High Court Judge erred in holding that the words in question were published with an intention to defame Chandrika Bandaranaike Kumaratunga that the said finding was totally unsupported by the evidence.

(i) The learned High Court Judge erred in holding that the Petitioner made and/or was responsible for the publication of the said words in that the said finding was unsupported by the evidence.

5. The following exceptional grounds warrant and justify the invocation of the revisionary jurisdiction of Your Lordships Court:-

(a) The continuance of this trial would occasion a failure and/or a miscarriage of justice in as much as the leaned High Court Judge has already arrived at the findings against the Petitioner as the major issues in the case.

(b) The Petitioner would be deprived of a fair trial if the trial of this action continues before the learned High Court Judge.

(c) The order of the learned High Court Judge is palpably wrong in fact and in law and is perverse.

(d) The evidence adduced by the prosecution does not establish a prima facie case, and the Petitioner is therefore entitled to an acquittal.

(e) In as much as the Petitioner entitled to an acquittal and the learned High Court Judge has already decided that the Petitioner is guilty of one or both the charges leveled against him, the Petitioner pleads real danger of being incarcerated and deprived of his personal liberty at the conclusion of the trial at least until an application for bail is concluded although he is not liable to be so incarcerated and/or deprived of his personal liberty.

6. Irreparable and irremediable loss and damage will be caused to the Petitioner unless Your Lordships' Court is pleased to stay the proceedings in this action until the hearing and final determination of this application.

7. The Petitioner has not previously invoked the jurisdiction of Your Lordships' Court in respect of this matter.

Wherefore the accused - Petitioner prays:-

(a) call for and examine the Record of the proceedings in case No. High Court of Colombo 7397/95;

(b) that the aforesaid order of the learned High Court Judge be set aside;

(c) that the accused - Petitioner be acquitted;

(d) that all proceedings in this action before the High Court be stayed pending the hearing of trial determination of this application.

(e) for costs; and

(f) such other and further relief as to Your Lordships' Court shall seem meet.

This revision application was filed on behalf of the accused - Petitioner by Vijitha Asoka Samararatna and Welisarage Felix Expedith Sunil Fernando practicing in partnership under the name style and firm of Asoka Samararatne Associates and their assistants Nimali Gunasekera, Shyamani Balasuriya and Sripali Ranasinghe, its registered attorneys-at-law.