UNP MP Sarath Kongahage on December 11 raised queries over the delay in promoting High Court Judge Upali de Z. Gunawardene and wanted Justice Minister G.L Peiris to explain it.
The Sunday Times today publishes the adjournment question asked by Mr. Kongahage and the reply given by Dr. Peiris.
Mr. Kongahage: Is the Hon. Minister aware that as a result of the promotion of High Court Judge Mr. Upali de Z. Gunawardene being delayed during the last 8 months, a serious situation has developed as overdue promotions of all Judicial Officers in the High Courts, District Courts and Magistrates’ Courts have come to grinding halt?
The Hon. Minister has said in an interview to the “Sunday Leader” of November 1, that the delay in promoting High Court Judge Mr. Upali De Z. Gunawardene has no relevance to a sensitive Defamation case against an Editor of a Sunday paper. If that is the case, will the Hon. Minister tell this House the exact cause for the delay and what steps the government has taken to remove the obstacles to enable the upward promotion of all Judicial Officers? Will he ensure that steps are taken to effect the promotion of Mr. Upali de Z. Gunawardene without further delay to enable the string of promotions of all Judicial Officers in the High Courts, District Courts and Magistrates’ Courts to be carried out with immediate effect so that all these Courts can function more effectively and also bring about greater satisfaction in the Judiciary, since this unwarranted and unexplainable delay has resulted in deep dissatisfaction among the Judges at all levels?
If not, why?
Dr. G.L Peiris: Sir, I wish to say in answer to that question that these problems have arisen entirely because of confusion with regard to the allocation of responsibilities under the Constitution. The power of appointing Judges of the Superior Courts is vested by our Constitution in Her Excellency the President. It is not a power that is vested in Parliament nor does Parliament have any role whatsoever with regard to the appointment of Judges of the Higher Courts. Equally, it is Parliament that removes Judges on an Address that is presented to Her Excellency the President. The removal of Judges is a matter for Parliament advising Her Excellency and not a matter for the Judiciary itself. I think we have to get this demarcation of functions correct. It is, therefore not possible for Parliament to get involved in the process of appointing Judges of Higher Courts.
I wish to add one comment, namely, that the delay of eight months which Mr. Sarath Kongahage has referred to is neither unique nor unusual. There are plenty of instances where long delays have occurred with regard to the appointment of judges. I wish, therefore, to state that there is nothing remarkable about that situation and that as early as practicable, Her Excellency will take appropriate action to appoint the judges of Higher Courts.
Day before yesterday, i.e. on 18.12.1996 the Defence in this case sought to call a Buddhist Priest viz. Revd. Gnanabiwansa who is the Chief Incumbent of the Wellawatte Vissuderamaya Temple. The object of this witness' evidence is mainly, if not wholly, to show that in the opinion of that witness the article or the excerpt relevant to the indictment against the accused-editor (of Sunday Times) is not defamatory of Her Excellency the President.
The general rule of law is that the opinions, and inferences of a lay witness were inadmissible to prove the truth of the matters believed or inferred by such witnesses even if such matters are in issue or relevant to the facts in issue in the case. Apart from the question of the relevance and reliability of opinion evidence it was held to offend by usurping the function viz, of the Court to from an opinion on the facts in issue - on the basis of the facts proved by the evidence placed before it. It is of utmost importance that the tribunal .of fact must retain control over the findings of fact which are its ultimate responsibility.
The use of witnesses being to inform the court (the tribunal of fact) respecting the facts - their opinions are not as a rule receivable as evidence. This rule however is not without exceptions and those exceptions are wholly if not exclusively spelt out in sections 45 - 51 of the Evidence Ordinance. It is to be observed that section 5 of the Evidence Ordinance states that evidence may be given only of facts declared to be relevant by any one of the provisions of Evidence Ordinance and of no others and so far as I know there is no other section in the Evidence Ordinance under which the evidence of a witness as to his opinion that the excerpt in question is not defamatory could have introduced into the evidence or let in. It is axiomatic that drawing of inferences and forming of opinions is the function of the court while it is the business of witnesses to state facts only, i.e. what they themselves saw or heard or perceived by their senses and not to drawing inferences or expressing opinions on what they had heard, perceived through their senses. In the ordinary run of cases, as stated above, the reception of opinion evidence would usurp the function of the court because the court i.e. the judge is (presumably) as competent to draw his own conclusions or form opinions as any other person or witness when the facts personally observed by the witnesses are narrated in court (before the judge) and in this case in hand (against the editor of Sunday Times) there is not even necessity for the witnesses to state or describe the nature or quality of the article or to even state facts regarding the article (upon which the accused-editor is indicted) let alone express an opinion that it is defamatory or not, for the article in question is in print and is itself before the court and the court has, so to say, direct access to the material (article relevant to the indictment) in regard to which the court has to make up its mind or form an opinion.
The opinion of any person other than that of the judge by whom the issue is to be decided is irrelevant to the decision of the case for if it were otherwise that would invest the person whose opinion is proved or expressed (before the judge) with the character of the judge - for that person's opinion would condition or influence or (either wholly or partially) the judge's opinion on which the ultimate judgement would be rested. The case of R. Vs Davies (1962) 3 All E.R. 97 is illustrative in this context. In all cases concerning drunken driving 2 questions arise; (1) Had the accused taken drinks (2) Was he unfit to drive through drinks.
In R Vs. Davies the court of criminal Appeal of England allowed a lay witness (non-expert) who had not seen the accused take drinks to answer the first question in terms or his impressions but not the second. Of course, if the witness had been a doctor (an expert witness) who had examined the accused, he (the editor) would have been allowed to give his opinion with regard to both questions. The witness being only a lay witness (non expert) the court of Appeal allowed the non-expert to give his opinion on the first question outlined above because it was a convenient way of stating facts on which his opinion was based the fact that the accused had a lurching gait and slurred speech and so on and the objection the witness answering the 2nd question enunciated above viz whether the accused was unfit to drive through drink - was that it involved the very point or issue that the court itself had to decide. Likewise, the point as to whether P3a-P4a is defamatory or not is very question that falls to be decided in this case.
It is also to be observed that a person who had published a scandalous imputation concerning another intending to harm the reputation of that other will incur or attract criminal liability under the Penal Code, " whether harm is actually caused or not". It would be apposite in this regard to refer to the case of Ram Narayan Vs King Emperor AIR 1924 All 566. In that case the accused made a publication in Hindi which when rendered into English meant "gentlemen scoundrel.. It was argued on behalf of the accused it had not lowered the moral or intellected character of the person who was called by those epithets and that the offence of defamation had not been committed or constituted.
Daniels J. dealt with that argument as follows: 'The argument overlooks the fact that a person commits defamation ............who published any imputation concerning any person intending to harm the reputation of that person whether harm is actually caused or not." It was emphatically pointed out in that case that a person who publishes a defamatory matter against another in a case not covered by any one of the exceptions (statutory defences enumerated in the Penal Code) cannot escape punishment saying that the reputation of the person attacked was so good and that of the person attacking so bad that serious injury to the reputation was not, in fact, caused. In this regard, the fact that the accused editor in this case had not invoked any one of the ten exceptions or defences spelt out in the Penal Code calls for remark.
To quote from Gour: "Moreover it is not a part of the definition of the offence of defamation that the imputation should have, in fact caused any harm to another person's reputation for it bases criminal responsibility upon the intention, knowledge and belief of the maker of the imputation.. ... It is one of those cases in which the law punishes the archer as soon as the arrow is shot no matter if it fails to hit the target.
The point I am seeking to explain is this, that is, at this trial which is on an indictment defamation under section 479 of the Penal Code, the central point is whether the article or excerpt complained of is reasonably capable of being understood or interpreted in a defamatory sense and not whether the publication of that article had, in fact, caused reasonable men to think less of Her Excellency the President or caused a lowering of the standing or image of Her Excellency in the eyes of the community of reasonable men. So that even assuming there had been no general legal bar to the adduction of non-expert opinion evidence yet the opinions of third persons (from the reading community) as to whether the article in question was defamatory or otherwise would be wholly irrelevant in as much as the question whether or not the imputation had, in fact caused injury to the President's reputation in the estimate of the reading community need not be considered by the court at all - in judging of the question whether the indictment of defamation is proved or not.
Another matter calls for remark. The Court cannot be oblivious to its duty to control the proceedings. Even assuming for the sake of argument, that non-expert opinion evidence is legally admissible on the question whether the relevant excerpt concerning the President is defamatory or not - even then there is no gainsaying that more than a sufficient volume of evidence has already been led by the defence touching that point - by calling witnesses from many walks of life who are representative of almost the entire gamut or compass of our society. Calling witnesses without any let or hindrance, as it seems to be, who are repetitive of the same fact viz, that the excerpt relating to the President, is, in their opinion, not defamatory - opens up the prospect of the trial being carried to inordinate lengths, which can frustrate the ends of justice whichever way the ultimate decision goes in the end, assuming, of course, that there will be an end. It is a trite observation to make that evidence has to be weighed not counted. In any event, if I afford an opportunity to call lay witnesses to express opinions on the question whether the relevant excerpt is defamatory or not that would be something like (if, in fact, it is not wholly so) the witnesses judging along with judge.
I have stated above that the defence has already called more than a sufficient number of witnesses to say that P3A - P4A is not defamatory from all walks of life.
There is no provision in law which expressly confers in the judge the power to limit the number of witnesses that a party can call on a particular issue. But the court (the judge) is in over-all control the proceedings which pre-supposes that it has also the power to limit the number of witnesses when it is of the opinion that sufficient number has already been called.
The powers of a court are not rigidly circumscribed by the provisions of any code and the codes of law can never be exhaustive as to the powers of the court particularly in matters of procedure and any court of justice has an inherent power to make a particular order which is essential in the interest of justice - even where no section of the code can be pointed out as authority for it where its decision is based on sound general principles and is not in conflict with them or the intention of the Legislature. And no legislature could have intended that the judges who preside over the courts ought not to have the power to control the proceedings of the courts over which they preside. Vide - Sarkar on Civil Procedure.
For the aforesaid reasons I refuse to allow the defence to call any more witnesses to testify in regard to the question whether the excerpt P3a - P4a alleged to be defamatory is, in, fact so (defamatory) or not
Signed U.de Z. Gunawardena, High Court Judge of the Western Province, Colombo . 20.12.1996
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