22nd February 1998

MP says goon squads linked to defence VIPs

Attack on journalist sparks heated debate in parliament

By Dilrukshi Handunetti

In a hard-hitting battle in parliament centred on the recent attack on Sunday Times Consultant Editor Iqbal Athas, the ruling PA and the opposition UNP on Wednesday accused each other of devilry, deception and double standards in relation to the freedom of the media.

Opening the debate, the UNP member Tilak Karunaratne charged that goon squads close to two defence VIPs were responsible for the attack on Mr. Athas, though he would grant that the VIPs themselves were not aware of it.

But the government hit back strongly. Minister Jeyaraj Fernandopulle lamented that sinners dressed in white were today pontificating for media freedom.

Media Minister Mangala Samaraweera while assuring a full and impartial probe on the Athas incident, said a party that was responsible for the infamous outrage on journalist Richard de Zoysa had ironically chosen the day of his death anniversary for a debate on the attack on another journalist.

The first shots in the heated debate were fired by Kalutara District UNP MP Tilak Karunaratne.

While urging the Government to act fast in nabbing the culprits and also to prevent such incidents in the future, he lamented that the PA which rode to office on a pledge to guarantee media freedom had blatantly broken the promise as it did with many other promises.

"During the past 3 1/2 years of PA rule, the free media have got a bad deal. Journalists who work with courage and determination have been intimidated or harassed. Culprits in previous attacks on journalists had never been brought to book in spite of repeated assurances, " he said.

Mr. Karunaratne referred to the attack on the editor of the Sunday Leader, the prosecution of editors of The Sunday Times and Lakbima and the intimidation of TNL TV crews on several occasions, among other incidents.

Describing Mr. Athas as an eminent professional journalist whose defence analyses were widely read here and abroad, Mr. Karunaratne paid a glowing tribute to Mr. Athas for his courage in exposing corruption, and whatever else needed to be exposed in the national interest, even at risk to his life and that of his family.

His insight on defence issues and independent interpretation along with his courage in presenting facts despite threats had earned him not only recognition but also a prestigious award from the New York based Committee to Protect Journalists in 1994.

"Goon squads of unknown masters in July 1997 had earlier tried to harass him and keep him under check. These goons were obviously acting on orders of some powerful people. They were so brazen that they even checked on the visitors to Mr. Athas' residence and noted down registration numbers of vehicles. His office assistant and household staff have been followed.

"When neighbours questioned their activities, these men admitted to being police personnel, investigating terrorist activities at the journalist's residence. In spite of the complaints to the police, the culprits were never apprehended," he said.

Explaining the background for the witch-hunt on Mr. Athas, the MP claimed that all the intimidation took place after the crusading journalist had in his Situation Report in The Sunday Times exposed alleged multi-million dollar rackets in the purchase of planes and other equipment while also critically analysing some defects or drawbacks in military strategy.

"Corruption in procurements were most prominent in the Air Force. This caused the President to appoint a special committee headed by Defence Secretary Chandrananda de Silva to investigate the loss of 19 SLAF aircraft and the purchase of military hardware.

"The committee clearly faulted the Air Force chief, Air Marshal Oliver Ranasinghe for many incorrect and irresponsible decisions which resulted in the loss of aircraft. But, the irony of it all was that no action has been taken on the findings and Oliver Ranasinghe's term of office has been extended in spite of the adverse comments," Mr. Karunaratne said.

Tilak Karunarathne

He said the Presidential Committee report was extensively quoted by Mr. Athas in his column, and since then, Air Marshal Ranasinghe and Deputy Defence Minister Anuruddha Ratwatte had openly attacked the journalist.

Explaining the government media campaign against Mr. Athas, Mr. Karunaratne said that in November last year, the state media had staged a public circus with a 40 year old man identified as Selvadurai Senthinathan who claimed to have worked for the LTTE as a translator.

"As this plot was being hatched to discredit Mr. Athas, some of his sources informed him of the happenings and both the Midweek Mirror and Lankadeepa managed to pre-empt the secret move by the government VIPs to portray Mr. Athas as an LTTE informant," he said.

Mr. Karunaratne said these incidents were clear indications that there was animosity towards Mr. Athas by the Deputy Defence Minister and the Air Force Commander. He charged that the goon squads and the media campaign against Mr. Athas were stage-managed by those who were close to the two VIPs, though perhaps without their knowledge.

Gen. Ratwatte's comments should be condemned by all, he said.

Describing the response of some responsible people as queer and unacceptable, he said that a DIG who faithfully promised a mobile police patrol every half hour, did not keep his word. Naturally there were no police vehicles around when vehicle of a similar colour and possibly carrying the goons passed by Mr. Athas' residence around midnight. "This was an indication that this would become yet another unresolved crime as it happened in the case of the attack on the Sunday Leader editor."

Concluding with a note of advice, Mr. Karunaratne said it was useless to recall the harassment of the media during the UNP regime, for this government has been given a mandate by the people to learn from those mistakes and not to repeat them.

"Sadly this government has not learned from past mistakes. Media freedom was restored by President Wijetunga. The so-called alternative press like Yukthiya, Ravaya, and the BBC's 'Sandeshaya' programme conducted by LTTE terrorist Wasantha Raja and a lot of other journals had the freedom to criticise the UNP regime.

"It was the free media which brought the PA to office, and therefore the government was duty bound to protect them, allowing a free media culture to flourish."

In response there was a fierce attack on UNP media policy by Plan Implementation Minister Jeyaraj Fernandopulle.

Hitting out at Mr. Karunaratne personally, the minister said it was ironical that 'Hela Urumaya' members chose to speak in English while angrily criticising the President for making her golden jubilee Independence speech in English.

Mr. Fernandopulle said the UNP had left behind a foul legacy of disappearances and abductions.

"One UNP member here personally instructed that 'Yukthiya' publications should not be sold in her electorate. While the PA condemns the attack on the journalist concerned, we must emphasize that the UNP has no moral right to speak on media freedom having tried to destroy the very foundations of democracy," he said.

Referring to what President Wijetunga had done, the minister said that by admitting that he restored media freedom, the UNP was also admitting that there was no media freedom before that.

Describing the harrowing ordeal experienced by the independent media at that time, the Minister said an innocent picket by media personnel at the Fort Railway station was disrupted by government goon squads during President Wijetunga's time.

"A popular cartoonist was knifed, and several defence writers received direct threats from the various chiefs of armed services. The most infamous incident was the killing of Richard de Zoysa."

Next to speak was Gampaha District UNP MP John Amaratunge who accused Minister Fernandopulle of side-tracking the issue and failing to meet the main argument.

Replying on behalf of the government was Media Minister Mangala Samaraweera who while condemning the attack assured an impartial inquiry and undertook to inform the House of the developments.

Counter arguing about the media freedom during President Wijetunga's tenure, Mr. Samaraweera said Mr. Athas was first sent a wreath, symbolic of death itself, way back in 1993.

Seeking to exculpate the government from the diabolical act, Mr. Samaraweera said he was determined to get to the bottom of this and reveal the truth because this was a plot hatched to discredit the government when it was relentlessly working to ensure freedom of expression in this county.

"I undertake to have a full inquiry conducted and to keep this house informed unlike the days when journalists simply disappeared and nothing was heard of them thereafter, he said.

Speaking on the related issue of raiding several houses of foreign journalists during the recent past, he assured the House that this would not be done unless in an extreme necessity and that too would be done with a responsible government official in attendance.

He said that Richard de Zoysa's rights were so violated by the UNP, that the UNP has unwittingly selected the day of his death anniversary to call for a debate on media freedom in Parliament. When the then opposition demanded a debate on Richard de Zoysa's abduction and death, it was no other person than the present Leader of the Opposition as the then Leader of the House who opposed it with vehemence bringing all possible excuses to disallow the debate.

"He held sway for 45 minutes arguing as to why the opposition request be turned down. It was Minister John Amaratunge who also tabled some bogus documents in support of this undemocratic stance adapted by the UNP.

"Mr. Amaratunge's documents sought to character assassinate the dead journalist and it was shamelessly argued by the UNP that Richard de Zoysa's sexual preferences may have contributed to the manner in which he was killed.

Mr. Samaraweera said that such were the barbaric statements that flowed from the government benchers during the past that it was easy to conclude that they were "queer animals of the worst category."

Stating there had been repeated instances where interested parties had tried to discredit the government, he said most of the incidents were the work of "heroes of the shameless past who were still in operation."

Why Lakbima editor was acquitted

It is hardly likely that any reasonable person would expect. Her Excellency the President would attend a friend's party surrounded by her security personnel to stand close to her where the "party" was held. Even assuming the article was true in that, the fact that Her Excellency attended the "party" and that at the point of being present at the "party" she was without her security, it would be natural for one to reasonably expect that after she entered the reception that the security personnel were present outside. It must be noted that the article did not refer to the President's security in the larger sense, but that the absence of security was curtailed to the point of time she participated in the function. This would not be an imputation that would cause the reader to think less of her. On the contrary the reader in all probability would reasonably have expected her security not to have participated in the party with her. I therefore find the suggestion that the reader would impute"...... that she had thrown caution to the winds and etc." untenable. The reference to "security" was clearly made with reference to the time of participation in the "party".

The learned State Counsel also contended that this article must be taken and read in connection with and simultaneously with the cartoon at the bottom of the page which carried the caption "freedom of the wild ass and morals." The cartoon depicted a Hotel, with a portly balding male (garbed in a national dress, which is associated with most politicians) with a shapely female with short hair, clearly showing intimacy with each other. While the male was carrying a partly consumed bottle in his hand a smiling photographer was trying to take a picture when a pair of female hands carrying a black handkerchief was trying to blindfold the photographer from behind.

Bandula Padmakumara with his lawyers.

From left: Chandana Perera, Anada WijesekaraP.C., Bandula Padmakumara and Nalin Indatissa

Replying to this the learned President's Counsel who appeared for the accused, submitted that the charges only referred to a portion of an article referred to as P1 and the defamatory portion of the article was marked as P1a. The reference to the cartoon was taken up only at the submission stages by the State Counsel, and the President's Counsel submitted that the cartoon was not part of the case they were called to meet upon the charges instituted against them. On analysis it is clear the impugned aritcle P1a, makes no reference whatsoever to a cartoon. It is also clear that the cartoon ex facie is of a general nature referring to morality in a much broader and wider perspective. The cartoon, which is in the normal place where such cartoons are placed, bears no relevance to the private party referred to in the article, and at the most is a reference to the public behavior of politicians in general. The cartoon bears no relevance to the article. There is no nexus between the cartoon and the "party" referred to in the article. It cannot be even inferred that the cartoon was part of the article, which referred to the "party" of Asitha Perera. The cartoon taken at its most is an indictment on the loose morality of politicians, the disclosure of which is sought to be prevented by the manipulation of the press. In any event it is clear that as far as the case for the prosecution is concerned the reference to the cartoon was merely an after-thought and not part of the Article, which formed the basis of the charges, preferred against the accused.

The next portion of the impugned article P1a that is relevant for consideration is that the article blatantly suggests that on the following day Her Excellency the President was late in attending an important government parliamentary group meeting.

In any event the fact that Her Excellency the President had attended the birthday party of Asitha Perera, (the ordinary reading man or woman would not know that the fact that she went to the party was a false fact), but upon reading the article a definite attack is made on the conduct of Her Excellency the President. It seems to suggest the President of the country was so busy partying that she was late for an important function that concerns her public duty. In other words her conduct was not in keeping with the concern that one expects of the head of state. It suggests an inference that she was given to frivolity, at the expense of the serious duties that were expected of her as head of state. It was not the "partying into the wee hours that was" that was relevant as the state counsel suggested but the suggestion that this directly related to her delay at the parliamentary group meeting that had been held on the next day. The defence suggested that the prosecution had not proved that she had delayed in attending the meeting the next day. This is unimportant to the reader. The issue is that an ordinary, reasonable reader reading this article would understand that Her Excellency the President had failed in her duty in so much as that she was given to frivolities in preference to her duties as head of state. Her delay at the meeting of the parliamentary group had been due to her indulgence in her own amusement. On a reading of this portion of the article, the reader is left in no doubt that the imputation would indeed lower the esteem that Her Excellency would ordinarily enjoy as the head of state and cause the reader to think less of her. Taking it further this would in every probability harm the reputation of the President in the mind of the average reader.

The fact that the party was held in the Hotel Oberoi and not in the Taj Samudra Hotel, the fact that the President did not attend the party, and whether or not she was late for the parliamentary group on the next day are not matters that the average reader would even be aware of and he would not know that they were false.

In the Indian case of Purushottam Vijay of Indore Vs State (AIR 1261 M P 205 at 208). It was held that statements need not be microscopically or photographically true and the prosecutor in a criminal case cannot fasten himself to such inaccuracy in details.

Be that as it may, the causal relation that holds between the triad of words, sense, thought or idea and the reaction as dynamic or evocatory meaning of the words complained of is irrelevant. It is the descriptive meaning that is important for finding out whether most people would react in the relevant sort of way and how it would be understood by most people of the community.

The matter in Law which is relevant is that the ordinary reader referred to above, would in all probability, upon the reading of the matters set out in the paragraphs set out above, conclude that the President was given to frivolity and did not take her responsibilities and duties as head of state as seriously as she should. This would directly or indirectly lower the esteem or credit of the President in the mind of the reasonable or ordinary person.

This is the kind of imputation that was clearly included in terms of the provisions contained in section 479 of the Penal Code. I therefore find that the article marked P1a, is a false imputation that harms the reputation of her Excellency the President.

The next matters that have to be considered by this Court was described by Justice Gratiaen in the case of Vaikunthavasan vs The Queen (56 NLR 102) in which it was held that in a prosecution for criminal defamation as defined by section 479 of the Penal Code, the burden was on the crown to establish inter alia that

a) the accused made or published the particular imputation complained of and

b) that he did so with the requisite intention or knowledge. i.e. with the intention of harming, or with the knowledge or having reason to believe that it will harm the reputation of the person concerning whom it was made.

Examination of the basic concept of injuriandi in defamation reveals certain important developments. The need for animus injuriarum in the classical Roman-Dutch Law was required in order that the injuria of defamation complained of is made out. This was an ordinary requirement of the actio injuriarum. In modern cases, this aspect of defamation has been reiterated. In the Case of de Costa vs. Times of Ceylon Ltd., the Privy Council held that the existence of animus injuriandi is an essential basis of the cause of action, 1963 65 NLR 217 at 224. In Perera vs. Peiris, the Privy Council also took the same view, 1948 50 NLR 145. In Misel vs. Van Naeren de Villiers A.J. said "....and there can be no injuria without animus injuriandi 1960 4 S.A. 836. Animus injuriandi, for the purpose of constituting the injuria of defamation,would be considered as present generally when (a) there is a definite object of bringing about the unlawful factum of defamation, namely, unlawfully publishing defamatory material concerning the plaintiff, and injuring the plaintiff concerning his reputation, or (b) if such an object is absent and another present, then it would be considered that there was an awareness that the unlawful factum of defamation, namely, the unlawful publication of defamatory material about the plaintiff would bring about harm or injury to his reputation. It is also open to the defendant to show that he had neither object nor awareness in relation to the required consequences because he was unaware of the defamatory meaning of the words or unaware that he was making a publication or that he had no intent to hurt the plaintiff in his reputation for some reason. In several cases, as in the case of Associated Newspapers of Ceylon Ltd. vs. Gunasekera, 1952 53 NLR at 481, it has been held that the plea that there was no injuria was by itself is inadequate and that it is necessary to specify the particular material on which reliance was sought to be placed upon. However, in criminal cases the prosecution must prove beyond a reasonable doubt that the accused made or published a particular imputation complained of and that he did so with the requisite intention or knowledge. In fact, Section 479 of the Penal Code stipulates that "Criminal defamation is where the accused 'intends to harm or knowing or having reason to believe that such imputation would harm the reputation of such persons...'"

In considering the case of Ramasami vs Lakananda (9 MADRAS 388) and Mohomed Nasir vs Emporor 1928 AIR Allahabad 321 it was held that it was no defence for a civil or criminal prosecution that the person who published the libel or slander did not originate it, but heard it or received it from another; nor is it a defence that it was current rumour and the person publishing it bona fide believed it to be true, and therefore the editor of a newspaper is as much responsible for a defamatory letter published in his column as if he had originally penned it. One of the judgements go on to state that an editor, must be watchful not to publish defamatory attacks on individuals unless he first takes reasonable pains to ascertain that there are strong and cogent grounds for believing that the information which is sent to him to be true.

It is clear that this type of legal principle evolves on the basis that one of the first duties of law is to protect personal reputation and adequately punish those who falsely and maliciously attempt to destroy it without legal justification or excuse.

However all these cases make it clear that what ultimately the decision is based on the facts and circumstances of the individual case.

Furthermore the Penal Code of Sri Lanka states that in criminal defamation there be the element of threat to public peace or the likelihood that an offence would be committed. And Professor G. L. Peiris in the Penal Code offences has distinguished our law on the basis that there is a material difference between Civil and Criminal defamation on the basis that civil and criminal liability have materially different objectives according to the case law of Sri Lanka. In the case of Thejawathie Vs Gunawardana (195456 NLR 193) a bench of three judges acquitted the accused on the basis that the prosecution had failed to establish that the defendant published the relevant issue of the newspaper with the necessary knowledge of its contents.

In this context, the evidence of Sumathipala, who was a partner in Sumathi Publishers, is relevant. He stated that this venture had commenced in 1980. He stated that he had been studying abroad between 1983 and 1985 and, on his return he had, in response to the research carried out by Lanka Market Research Bureau, regarding the necessity for a national paper, he had commenced the publication of the "Lakbima" in October 1994. His evidence was that the accused, who joined Sumathi Publishers in 1986, functioned as the Editor in Chief of Lakbima newspapers from its inception. He stated that there were also several other newspapers such as, Sarasi, Regina, Araliya, Sumudura, Kumudu and Sathsara, which were also published by Sumathi Publishers in which the accused functioned as the Editor in Chief. He stated that the objective of the newspaper was to carry articles which would be useful for the development and welfare of the country and it had been specifically decided that the newspaper was not to be aligned to a particular political party. This witness stated that at the times relevant to this charge, the editorial staff of the Lakbima newspaper consisted of 38 persons comprising one deputy editor, four sub editors and the rest journalists and reporters. Witness conceded the notional responsibility of the Lakbima newspaper rested on the accused and that he was also to take responsibility for the editorial which was carried adjacent to and above the impugned article Pl (a). He specifically stated that though the notional responsibility lay with the accused, he was not aware of the sub editor who prepared and checked the article Pl (a). He also stated that it was not possible for him to even expect nor was it, in fact, the practice for the accused as the Editor in Chief to read all the articles that were published in the newspapers. He described that the printing of the newspaper usually commenced with a meeting of the editorial staff on the Monday preceding the publication and at this meeting only matters concerning the lay-out of the following Sunday's publication was discussed and decisions taken, as Lakbima is a weekly publication.

He stated that on Tuesday the accused did meet the other editors to discuss the broad issues taken on by the newspaper. The process of printing of the newspaper commenced on Wednesday morning, was concluded on the night of Friday, and was dispatched for sale on Saturday. Even under Re-examination this witness categorically stated that even though the Editor in chief was nominally in charge and present in office, nevertheless, articles could get published in the newspapers without the knowledge of the Editor and the reason he adduced was that the entire newspaper had to be completed in only 3 1/2 days. He also explained he was unable to categorically state whether the article in question, Pl (a), had even been approved by the accused before it was sent for printing.

It is also important now to consider the evidence of the accused pertaining to this matter. When given evidence the accused stated that, he is a journalist of 15 years experience. He joined the Sumathi Publishers and functioned as the first Editor of the Lakbima. He corroborated the evidence of the Publisher that during the times material to these charges, the Lakbima newspaper editorial had a staff of about 35 persons. He gave a breakdown and said that there was one deputy editor and five sub editors who were all experienced journalists.

The accused explained that the Lakbima newspaper contained three parts, the Lakbima, the Manjusava and the Rigma. He stated that the Lakbima, which contained the impugned article, carried other articles on politics and social events. This supervision was entrusted to the Deputy Editor. Supervision of the other two parts of the newspaper was handed over to two sub editors. The accused wrote only the editorial and the column entitled Sameepa Rupa. He stated that it took generally about three days to collect the material and write this column. He also stated that considering the entirety of the newspaper, as the editorial was an important part of the newspaper, he would read the computer print-out of the editorial before the same was dispatched. His attention was also invariably diverted to the first page of the publication as this is in the competitive field of the print media, important and it is essential that it be made eye catching and interesting to the reader of the newspaper. He categorically stated that excepts for this editorial and the front page articles the deputy editor and the sub editors who checked them before they were dispatched for printing supervised other articles. He specifically denied reading Pl (a) contained in the Lakbima of 19.2.1995 before the paper was sent to the press. He stated that he was unaware of this article and he had, at no time, read the article. This was specially so as he had always given instructions to the deputy editor and the sub editors regarding the manner in which their functions should be carried out and also assured them, for any emergency, his advice and help are always available. He also described the actual process of printing. He related that it is done in three stages. As the provincial edition goes out for sale, the first copy of the newspaper is received by the accused. He clearly explained that the printing itself was done in stages and in the circumstances he did not have the opportunity of seeing the whole newspaper with all the articles arranged until the provincial edition left the premises for distribution. It appears from his evidence that by the time the newspaper was printed, he had worked on shifts, which exceeded 24 hours. If such an amount of time is spent at his desk, it cannot be inferred that at that stage he would have had the will to sit and read the entire newspaper.

Contd. next week

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