Hulftsdorp Hill

9th August 1998

A thousand apologies, Mr. Chairman!

By Mudliyar

A thousand apologies, Mr. Chairman!

ANCL chairman on Mudliyar

A thousand apologies, Mr. Chairman!

By Mudliyar

This is to tender my profound and sincere apologies to the Chairman of the Associated Newspapers of Ceylon Ltd, Aloy N. Ratnayake, President's Counsel, for my error in deleting the word, IF from the statement I quoted from his letter written to Bar Association President Romesh de Silva, P.C.

I must state that the dropping of the word IF was not deliberate and no mischief was intended. Mr. Ratnayake has said in his letter: "In fact if we had done so, and given the name of the Judges which was not necessary for the purpose we had in mind, then we would have laid ourselves open to a charge of malicious defamation, and you would probably have sent us a letter of demand for defamation on behalf of them in the first instance." But in my letter I have inadvertently dropped the word IF, for which lapse I tender my sincere apologies to the ANCL Chairman.

I also said that in the reckoning of the chairman, the publication was malicious and defamatory. The chairman's contention if I understand him correctly is that it would have become malicious and defamatory only if the newspaper published the names of the judges.

I also made a great mistake when I adverted to the following facts: "and the Chairman, being a very astute President's Counsel would know that his institution would have defended such action without much difficulty if the publication was true and made in the public interest. No one would ever doubt that the unbecoming conduct of a judge would be published in the public interest, but there is a very important rider to this story - It is that the news-item must be true."

Now it is clear that the chairman takes up the position that the editor deliberately and intentionally did not mention the names of the judges as the newspaper would be faced with a civil suit.

Therefore the learned President's Counsel's position is that the publication in the absence of the names of the Judges who were defamed will not incur a civil suit for damages, and a mere mortal like Bar Association President Romesh De Silva would never think of sending a letter of demand to Lake House as he would concur with the learned exposition of animus injuriandi made available to him (Mr. Romesh de Silva, P.C.) by the learned President's Counsel Aloy Ratnayake.

In fact Mr. Ratnayake would have thought that if the judges who had been defamed ever consulted Romesh de Silva, P.C. he would have in addition to the tomes he has in his library the expertise of Mr. Ratnayake,and he who would advise the Judges to drop the suit.

I do not claim to have the knowledge of the eminent President's Counsel Ratnayake, or could never even envisage how Mr. de Silva, would have reacted to the expert opinion given to him without any fees.

As a mere Mudliyar and only as an observer when these great legal luminaries take a different view over a publication which has defamed all the High Court Judges in Sri Lanka, I feel saddened. Sorry, I have again used the term defamation, and who am I to contradict Mr. Ratnayake when the editors intentionally refused to advert to the names of the errant judges, as then only could it be subjected to an action for defamation.

It will be interesting to know what the reaction was of Mr. de Silva when he received the all important letter from Mr. Ratnayake, the Chairman of Lake House. Mr. de Silva's reply was curt and to the point. This is what he stated:

29th June, 1998

The Chairman

The Associated Newspapers of Ceylon Ltd

"I am in receipt of your letter dated 19th June, 1998.

"Your attempt to educate me on the Laws of Defamation and the Constitution of the BASL is neither necessary nor relevant to the issue. Furthermore I made no personal remarks against you. I do not intend doing so.

"Your letter is no reply to mine.

"The Executive Committee has passed a resolution which has been brought to your notice"

It is interesting to note that Mr. de Silva has not taken kindly to Mr. Ratnayke's attempt to educate him on the Laws of Defamation.

As a mere Mudliyar I have had the occasion to work with some exemplary judges whose conduct and learning has been venerated by many senior President's Counsel.

Of these Judges who adorned the Supreme Court Bench one of my favourites is Dr. A.R.B. Amarasinghe, as he is an academic who has written many books on law for the education and edification of mere mortals like me and that of the public.

In his book 'Defamation in the Law of South Africa and Ceylon' on page 181, he writes about the correct approach to the question of identification in cases where the identity of the person defamed is not clear on the face of the publication.

He quotes from a South African judgement, I do not know why, I believe South African law is relevant to Sri Lanka and Mr. Ratnayake will not contradict this position.

In Bane Vs. Colvin De Villiers, J.P. suggested that: The correct approach to the question of identification of the person defamed involves two questions. As it was put by Lord Simon in Knupffer Vs. London Express (1944 I.A.E.R. 467), the first is a question of law — can the article having regard to its language be regarded as capable of referring to the plaintiff.

The second is a question of fact, namely does the article in fact lead reasonable people who know the plaintiff to the conclusion that it does refer to him. Unless the first question can be answered in favour of the plaintiff the second question will not arise.

Dr. Amarasinghe refers to another interesting case where a publication refers to well-dressed men who prowl the streets for the purpose of molesting ladies.

In this case the names of the persons were not mentioned and was supposed to be directed at a class of people and not at a particular individual, but this article had some vague reference to a person who had been accused but not found guilty of committing this outrage. The defendant argued quite brilliantly that it referred to the class of person described in caption and was merely criticising their behaviour.

De Villiars C.J. said "although there is a reservation in one part of the article saying it remains to be proved whether the accused person is a man who committed the outrage, yet it is possible that the reader reading the whole of the comment in connection with the report might come to the conclusion, I do not say, will come to the conclusion that the plaintiff was indicated as the person who was guilty of the offence named in the article."

The Sunday Observer and Silumina articles referred to a politico who has a case before the High Court. And the name of the politician was mentioned in many other newspapers including my column. Therefore, there was an obvious reference to the politician and the Judge who is hearing this case.

Another Sunday newspaper went to the extent of mentioning the name of the Judge. Therefore it was very clear at least to the members of the profession long before the editor of Sunday Observer wrote to the Secretary of the Judicial Service Commission, who the Judge referred to in the article was.

The President of the Colombo Law Society, Nihal Pieris informed the Bar Council that immediately after the news item appeared in the Sunday Observer, he met the Judge concerned. It was simple to evaluate by a process of reasonable deduction which could be attributed to every reasonable and prudent man who the Judge was. The Judge was furious that the newspaper should publish such malicious, false, defamatory news items.

Therefore, by merely defaming a class of persons like the High Court Judges of the country and enabling even a junior lawyer to come to the conclusion who the High Court Judge is, by reading between the lines, becomes a shield that protects the institution from the Laws of Defamation. Even the very thought of it could come only from a person of the calibre of Mr. Ratnayake who has sought to contradict me about the action of the Judicial Services Commission writing to the Lake House Group chairman requesting him to divulge the names of the Judges.

I am glad to know that the Judicial Service Commission has written to the editor concerned and wanted to name the Judges. The editor has named the Judges as mentioned in my article.

If the Judicial Service Commission has not written to the Chairman, and only the Editor, I stand corrected, but the fact that the Judicial Service Commission has written more than once has not been contradicted.

Mr. Ratnayake has sought to contradict the positions I have taken with regard to the dropping of 'IF' from his letter and that the Judicial Service Commission did not write to the Chairman but to the editor requesting him to name the Judges. He also states in his reply that there has been no departure from the tradition at Lake House which only publishes news items when Lake House was convinced of the truth of the story.

This is a vain attempt to show the public that the story which appeared both in the Sunday Observer and the Silumina is true and the Judge did dine with the politico at the Hotel Blue Oceanic, on a date kept mysteriously avoided in the news item.

The High Court Judges Association has met, and every High Court Judge who sits in every High Court Zone in the Republic, has denied this story.

The Chairman of the High Court Judges Association has requested the Chief Justice to take appropriate action immediately to safeguard High Court Judges from such baseless, false and malicious publications imputing improper conduct to High Court Judges.

The entire profession is up in arms against such slanderous material being published in national newspapers and has urged the Executive Committee to ensure that speedy action is taken.

The Executive Committee of the Bar Association not only unanimously adopted a resolution but also unreservedly condemned the news item and further requested the Chief Justice to initiate action.

Bar Association chief Romesh de Silva met the Chief Justice and expressed the serious concern of the profession regarding the publication and sought immediate action.

The Chief Justice has informed Mr. de Silva it is the President of the Court of Appeal who is empowered to deal with such contemptuous material published in the newspapers. The Silumina news item which is of an extremely serious nature, stated that the unnamed Magistrate is notorious for his connections with the underworld. This is the lowest level that a journalist could fall to discredit someone for some gain.

Lake House newspapers after the take-over of the group have been notorious for defaming political opponents. Sometimes even a tabloid journalist will not fall into such depths of degradation. This is a clear indication of the tabloid journalism at Lake House which has turned its guns from political opponents to Judges who according to the reckoning of their political masters are even worse than their political opponents as they are independent.

Media Minister Mangala Samaraweera only the other day at a news conference said a certain newspaper had prostituted the ethics of journalism by levelling baseless allegations against him.

Let Mr. Samaraweera know that the news item which appeared in the Sunday Observer and the Silumina is much worse, and is a clear case of newspapers prostituting the ethics of journalism.

Therefore, Mr. Samaraweera who is concerned with the journalistic ethics should put his house near the Beira in order before exhorting the Free Media Movement to take cudgels against other editors who according to him have defamed him.

A thousand apologies, Mr. Chairman, Mr. President's Counsel Mr. Ratnayake

ANCL chairman on Mudliyar

I refer to the article appearing in The Sunday Times of the 2nd August 1998, on page 13 under the caption "Scandalizing the Courts". In this article by "Mudliyar" the writer has made many false statements against me referring to me by name as well as designation.

In fact in relation to this same matter in an earlier publication of the 28th June the same writer "Mudliyar" published a letter sent to me by Mr. Romesh de Silva, the President of the Bar Association and without publishing my reply stated that there was a deafening silence from the Associated Newspapers of Ceylon Limited, although I had in fact replied the letter of the President of the Bar Association.

I did not at that time think it necessary to ask for a correction. However, in your last Sunday's paper about which, I am now writing to you, in the article by "Mudliyar" "Scandalizing the Courts", you published a portion of that reply which I had sent to the President of the Bar Association, quite out of context and distorted in order to support your Mudliyar's false inference, that my reply clearly shows that the publication in the Sunday Observer was not only malicious but also defamatory "in the reckoning of the Chairman himself."

In my reply to the President, Bar Association what I said was "in fact IF we had done so" but in your publication you have deliberately dropped the word IF and stated "in fact we had done so".

In any case my reply in relation to this point was merely a statement to show what the law of defamation prevented the journalists from doing, and went on to state that journalists have to "limit whenever possible, our references in our news items, to the minimum information necessary to bring to the knowledge of the reading public any misconduct of any public servant especially Judicial Officers" and show that this was why the Editor probably had not given the names of the Judicial Officers concerned in the publication of the Sunday Observer and your "Mudliyar" has deliberately sought to misquote me and gave a false slant to my reply.

Hence, I am reproducing my reply fully for the purpose of placing it in its proper perspective and to show how false and perverted the "Mudliyar's " inference is, that even in my reckoning the publication in the Sunday Observer of 7.6.98 was malicious and defamatory.

My reply to Romesh de Silva"s letter is as follows:-

"I am in receipt of your letter dated 15th June 1998, and I must at the very outset state that I was surprised by it

"Firstly, I wish to know on what authority you are requesting me to "forward to the Executive Committee of the Bar Asociation the names of the Judges concerned, so that suitable action could be taken."

"It may be of interest to you, especially as a lawyer, to know that all newspapers are governed by the law of defamation as also by the Code of Ethics for Journalists. Accordingly we try, to limit whenever possible our references in our news-items, to the minimum information necessary to bring to the knowledge of the reading public any misconduct by any public servant, especially Judicial Officers, without coming out with their names unless such revelations are absolutely necessary, to make the public aware of the misconduct complained of.

"Hence, we cannot, without overdoing our task of giving the necessary information only, of the misconduct of certain Judicial Officers to the reading public, divulge the names of the judges involved which, if we thought was absolutely necessary for the conveying mainly, of the news of the misconduct by certain Judicial Officers, we would have done, in the first instance, in the news-item itself.

"In fact if we had done so, and given the names of the Judges, which was not necessary for the purpose we had in mind, then we would have been opening ourselves to a charge of malicious defamation and you would have probably sent us a letter of demand for defamation on behalf of them in the first instance.

"I would also in passing, like you to know that the discipline and control of the judges is vested with the Chief Justice and the Judicial Service Commission, and if there is any person who is interested, and has power to inquire into the conduct of Judges and to deal with the discipline of the Judiciary. It is the Chief Justice and the Judicial Service Commission who have the power to do so, and officially they may request the information you have so officiously sought.

"The Bar Association or its Executive Committee, in terms of the Constitution of the Bar Assocition has no power to inquire into the conduct of Judges or to consider disciplinary action against them, and I must hence express my displeasure as a fellow member of the Bar Association trying to overbear yourself."

On this matter I can only say that I endorse Mudliyar's statement elsewhere in this article, viz., that "it is not the tradition of an institution like Lake House to publish such reports as true unless they were convinced of the truth of the story" and you can rest assured that there has been no departure from that tradition.

There are a number of other falsehoods, in your publication and I must refer at least to some of them.

For one you state that "the Judicial Service Commission under whose purview the disciplinary control of the judges rest, wrote more than once to the Lake House Chairman requesting him to divulge the names of the judges mentioned in the news-item."

This is completely false as the Judicial Service Commission has not written a single letter to the Chairman of Lake House (and that, I think is because the Judicial Service Commission is headed by His Lordship the Chief Justice, who knows the law. In fact for Mudliyar's information, the Secretary, Judicial Service Commission has written only to the Editor of the paper concerned stating that "the Judicial Service Commission will greatly appreciate any information you could provide in regard to this matter to enable the Commisson to take appropriate action".

Again you state that the Chairman of Lake House "after having been requested by the Judicial Service Commission more than once has mentioned the names of only two judges... still according to the Chairman, the second High Court Judge who was later demoted to be a District Judge has not been named."

As I mentioned earlier I have not been written to at all, by the Judicial Service Commission and, as I have not, in reply, sent any letters to the Judicial Service Commission and since whatever correspondence with the Judicial Service Commission and Lake House on this matter, has been with the Editor concerned, all the statements in these three paragraphs are false, and planted by Mudliyar to malign me. In any case there has been no change in the numbers or names of the judges which the Editor of Sunday Observer gave in his reply to the Secretary of the Judicial Service Commission's letter.

In the circumstances, I would be thankful if you give the same prominence to my statement which sets out the true facts.

Aloy N. Ratnayake., P.C.

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