Hulftsdorp Hill

8th November 1998

The greater the truth, the worse the libel

By Mudliyar

Defaming the President was one of the most despicable crimes one could commit at any time. Defaming the king in any country was high treason, but even the king of England was under no man but under God and the law. Bracton wrote Quod Rex non debet esse sub homine, sed sub Deo et Lege" (That the King should not be under man but under God and the law). But JRJ decreed under the Constitution of the Democratic Socialist Republic that no President would be under any law and as we are part of a secular society, was not under any God.

Therefore, to defame such a person was even a worse offence than defaming the King.

But this is exactly what R. P. Wijesiri, M.P. for Harispattuwa did on December 3, 1979. Addressing a public meeting at Matale he befouled the atmosphere and ventured to call J.R. Jayewardene with the vilest, foulest words one could think of. He accused him of plunder, cheating and every other crime, one could imagine. The audience went wild with hilarity with the invective which the speech was interspersed with.

But the police recorded the speech and made careful notes of every word Mr. Wijesiri in his over enthusiasm uttered. The louder the cheer, the more harsh was the speech. Mr. Wijesiri did not believe what he said, even if he believed he had no way of proving it.

The cool and calm J.R. Jayewardene was reportedly angry when he heard about it. He was the president and had come to office by an overwhelming mandate by the people of this country. No other leader had got so much power, which permitted him to amend the constitution and become the first executive president of the country.

Mr. Jayewardene was firmly in the seat of power and his only rival, Sirimavo Bandaranaike, had lost her civic rights. The SLFP had been reduced to seven seats in Parliament and as a result there was much intrigue and infighting in the party. The tape recordings and the other material which included the transcription of this highly defamatory statement by Mr. Wijesiri were sent to the Attorney-General for action.

Unlike the case of a president with an epicurean taste and entering a posh hotel from the back door the words uttered by Mr. Wijesiri were so obnoxious that even the most junior law student would immediately say that they were defamatory of the president.

Therefore, as expected an indictment was forwarded to the Kandy High Court presided over by C.L.T. Moonemalle.

The SLFP was in a disarray with no prospects of returning to office. In such a situation, no lawyer was willing to appear and defend the charge which on the face of it had no defence.V.W. Kularatne was a senior Vice President of the SLFP. He is a man who shunned position and refused to go places in the name of the party he worked so tirelessly for. It is said that Ms. Bandaranaike trusted him so much that when she lost her civic rights she first offered her Attanagalle parliamentary seat to him. Mr. Kularatne refused to become an MP but instead was willing to work steadfastly for the party which was being gradually deserted by loyalists who saw no future for the SLFP. Mr. Kularatne was the legal man of the party. He was entrusted with the brief of Mr. Wijesiri and was asked to retain counsel to defend him.

D.S. Wijesinghe was then the Deputy Solicitor-General and having worked with aplomb in the Department he decided to leave and join the private bar. To many a state counsel the time comes when he has to make an important decision about the future of his career. Most of them have got used to the "princely" salary and the steady income which they earn in the official bar. Their expenses are limited and most of them save much more than those who earn for a day what a state counsel earns for a month. But the life of the state counsel is a contended and a spiritual one.

When Mr. Wijesinghe finally decided to take the plunge and venture into the jungles of private practice he had to forego a princely salary of Rs. 2,000/- which then was more than sufficient to live a comfortable life. When he left the Department, he like most other counsel who have treaded the wild paths of the private bar had no choice to decide on the type of cases that he would undertake. Otherwise one would soon to their utter chagrin realize that others who are more daring and adventurous would soon leave you behind in the rat-race.Mr. Kularatne had heard and known Mr. Wijesinghe and had been impressed by him. He along with Gomin Dayasiri and two other lawyers who continued to support Ms. Bandaranaike and the SLFP got together and decided to retain Mr. Wijesinghe.

Some expressed reservations whether he would accept the brief as Mr. Wijesinghe was related to President Jayewardene. But Mr. Kularatne was certain that his connection with Mr. Jayewardene would not prevent him from accepting the brief.

When they met Mr. Wijesinghe for consultation and wanted them to see him a few days later after having gone through the brief they went with trepidation thinking that like some President's Counsel who would find some lame excuse to refuse a brief which he thinks is so black that there is no way to succeed, Mr. Wijesinghe would wriggle out, citing some excuse.

But they were shocked when Mr. Wijesinghe told them that there was absolutely no defence on the facts except some legal defence, highly technical in nature which would be thrown overboard within minutes by the High Court Judge. The so-called legal objection was discussed and Mr. Kularatna was convinced with the argument.

Therefore, Mr. Wijesinghe had no choice but to accept the brief. When they went to Kandy for the trial they saw a loudspeaker installed outside the High Court to play the tape which contained the defamatory speech of Mr. Wijesiri, second MP for the multi-member constituency of Harispattuwa.

Mr. Wijesinghe was not overawed by the atmosphere nor by the presence of a super team of prosecutors from his former department headed by Sunil de Silva, the Deputy Solicitor General, and State Counsel D.P. Kumarasinghe, and Asoka Silva.

The trial had been fixed to be heard day to day. There were supporters of the UNP and supporters of Mr.. Wijesiri outside the High Court. But Mr. Wijesiri had more supporters. In spite of such a crowd, only 30 members of the public were admitted to the courthouse.

Mr. .Wijesinghe the strategist par-excellence made his submissions and before the trial started took a preliminary objection as to the jurisdiction of the Kandy High Court.

Mr. Wijesinghe said there was no complaint by the aggrieved party and no official record of the complaint had been filed to support the charges. Mr. Wijesinghe or Sunil Silva or for that matter Judge Moonemalle could never in their wildest dreams hope the President making a complaint before a magistrate that he had been defamed by Mr. Wijesiri, a little known M.P. who had come to Parliament purely because of the fact that Harispattuwa was a multi-member constituency. But Mr. Wijesinghe argued that the criminal defamation laws were so framed that the aggrieved party should first go before a Magistrate and complain to court that he had been defamed. Taken aback by this line of argument, Sunil de Silva, tried to laugh at the argument, describing it as a cheap trick of a charlatan who had the pretence of a holy man. He told court that if Mr. Wijesinghe's argument was the correct interpretation then anyone could defame a person resident abroad and get away with it, as the person resident abroad would not be in a position to come to Sri Lanka and complain before a magistrate.

After a lengthy argument the court adjourned the order for the next day.

Mr. Wijesinghe accompanied by his juniors Gomin Dayasiri and V.W. Kularatne adjourned to the Peradeniya Rest House. Mr. Wijesinghe could not sleep that night. He knew by experience and instinct that however sound his argument seemed to his entourage, yet the judge would not be interested. For the Judge in Kandy the President of the country had been defamed and there was no way in which these statements could be rejected because on the face of it they were absolutely libelous and attacked the moral character and the integrity of the President. Mr. Wijesinghe reckoned that the trial would begin tomorrow and the objection would be thrown overboard. The cold facts dawned upon him. The most celebrated case he undertook after he left the department would end in a conviction. He suddenly felt cold and breathless.

Mr. Wijesinghe was seriously ill and was rushed to Colombo. It was left for Mr. Kularatne to plead for an adjournment explaining the sudden sickness that befell his friend. It was with much difficulty that he was able to persuade the judge to grant him a short adjournment for a few days. The judge having overruled the preliminary objection made it clear to Mr. Kularatna that with or without the senior counsel, the case would be taken up for trial.

Mr. Kularatna was certain that the point taken up by Mr. Wijesinghe was tenable and that the high court judge had erred in dismissing it. He consulted Mr. Wijesinghe who was convalescing, and he advised him to retain Dr. Colvin R.De Silva. But he refused to accept the brief without Mr. Wijesinghe being present for the consultation. The mere fact Dr. De Silva was even willing to consider his argument relieved much pressure and anxiety, and his sickness disappeared.

When Mr. Wijesinghe placed his arguments Dr. De Silva took the torn copy of the Criminal Procedure Code and read the section over and over again. Then he kept his arms over the book and placed his head on the table, and was in deep meditation for nearly half an hour. Then suddenly as if struck by light of Bullens eye he raised his voice and in that stentorian voice thundered "I say Wijesinghe you have a point" to the sheer relief of every body. The greatest advocate of the day always believed in the first principles not on precedents and New Law Reports. Once the basic principles are established and interpreted then it was upto the juniors to find the case law. The case laws were found, the papers were prepared and filed in the Court of Appeal. It was listed before Justice Ratwatte, Victor Perera and H.D. Thambiah.

Victor Perera had been appointed by J.R. Jayewardene to the Court of Appeal from the private bar. DSG Sunil de Silva appeared for the state and said that he was prepared to take notice and argue the matter on any day. After listening to the counsel the Court of Appeal decided to grant a stay order staying the proceedings in the High Court, Kandy and ordered the original case record to be called to examine the propriety of the indictment

When the matter came up for argument it was before Justice Parinda Ranasinghe, Justice Abdul Cader and Justice L.H. De Alwis. All the judges have been appointed to the Court of Appeal by Mr. Jayewardene under the New Constitution after the promulgation of which Mr. Jayewardene sacked nearly 11 judges and some of these judges were filled to these vacancies created by this extremely undemocratic act.

Everyone was of the view that Dr. De Silva was wasting his breath. But to the lasting credit of our judiciary the judges acted as judges and not as goons of the President. The President was anxious that his defamers be punished. Even at the A.G's department there was much consternation that if the courts do not hold with the department, some big heads would roll, and the department was facing this daunting task.

From the inception the judges of Sri Lanka have earned the adulation, respect and reverence from the people of this country, as the only institution that is far above the rest which had been habituate to unmitigated corruption scandal and lethargy. The judges after listening patiently to the argument of all parties, decided, to the surprise of the government and its supporters, to uphold the argument founded by Mr. Wijesinghe and argued with the great forensic ability of Dr. De Silva.

The D.S.G. wanted to support an application for special leave to the Supreme Court. If the Supreme Court allowed the appeal of the state, it was decided that Mr. .Wijesiri was to conduct his trial without any counsel and as a forewarning to the impending trial a list of witnesses was filed.

Mr. Jayewardene like all politicians had many enemies. Most of them volunteered to give evidence. The trial would be much worse than the allegedly offending speech.

Mr. Jayewardene was a mature politician. He knew from experience that no complainant won a defamation case against a newspaper or an MP. Even if there was a temporary reprieve the media would win at the end. When the department was preparing papers to appeal against the order of the Court of Appeal, Mr. Jayewardene being a wise ruler, knew the intricacies of a long protracted trial and outfoxed everyone including Mr. Wijesinghe.

At the prize-giving of Mahinda College he said that "Lord Buddha was mercilessly abused by a person when he went to a home for alms. One of his disciples had asked him why he had not said anything to that person. Lord Buddha's reply was that person had brought a heap of dirt to him and he had refused to accept it. So he had to take it away with him."

In the same way, the MP who had brought that abuse to him had to take it home with him. He said that he might have done many wrongs in his life but his constant endeavour was to correct himself. "One who learnt the doctrine of Lord Buddha and lived up to it would never be found wanting. Therefore following the words of Buddha I have instructed the AG's department to withdraw the appeal."

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