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26th March 2000

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Daya Senanayake claims Rs. 6 bn. from Ceylinco

By Ayesha R. Rafiq

Former Deputy Chairman of Blue Diamonds Jewellery Worldwide Ltd. Daya Senanayake has filed action in the Colombo District Court suing several companies of the Ceylinco Group and its directors for a joint sum of about Rupees six billion, for illegally removing him from his post as Deputy Chairman of Blue Diamonds.

Mr. Senanayake submitted that he was Deputy Chairman and Managing Director of Blue Diamonds since its inception in 1990.

He submitted that in or around 1999 a life-long friendship with Ceylinco Group Chairman Lalith Kotelawala had begun to sour and was further aggravated by certain matters pertaining to a power generating company established by the Ceylinco group, namely Energen International Ltd. Sri Lanka.

Blue Diamonds had negotiated to sell its technical know-how to Energen Holdings Ltd. Mauritius, and the total shareholdings of Blue Diamonds in the company, negotiated as payment for the sale would be US$ 7,000,000. The Plaintiff submitted that Lalith Kotelawala was fully aware of all deliberations and decisions pertaining to this deal.

Last year the Plaintiff instructed the Blue Diamonds auditors when they met to discuss the audited accounts as of March 31 that the company was to be allotted shares in Energen Mauritius for US$ 7,000,000 and told auditors to finalise the audited accounts draft for a final discussion with Lalith Kotelawala. He had however later received a letter addressed to the Finance Director of Blue Diamonds from Lalith Kotelawala stating that the Plaintiff's instructions to the auditors to make a note in the balance sheet that the technical rights of Blue Diamonds be sold for US$ 7 million, and that the auditors be informed was not acceptable and not to proceed with these instructions.

The Plaintiff says this is blatantly contradictory to the agreement entered with Energen Mauritius. The Plaintiff in keeping with a request made by the Chairman and in the interest of the company, acquiesced to appoint a Management Council to manage the operational activities of the company, which would be accountable to the Board of Directors.

In December last the Plaintiff submitted that he received a letter from some defendants making baseless and false allegations against him and purporting to appoint the Finance Manager as the Joint Managing Director of Blue Diamonds with immediate effect. He refuted the allegations and forwarded it to the shareholders.

He submitted that he believed that among other things Mr. Kotelawala suggested that Mr. Senanayake be removed as a Director of Blue Diamonds and that the matter would be brought up at an Extraordinary General Meeting.

At the EGM, Seylan Bank was given the proxy to vote on 4, 800,513 of Gold Lada's, (the single biggest shareholder of Blue Diamonds) 5,160,000 shares. The Plaintiff was allowed to vote on the remaining number of shares as he held the power of attorney for Gold Lada. He submitted that this proxy was wrongful and illegal and had no force in law, and if he had been allowed to vote on the total number of shares he would have won against the resolution to remove his as a Director of Blue Diamonds.

He asked court for a declaration that the resolution passed at the EGM was wrongful, unlawful, null and void and that the proxy was illegal. He also asked for a cumulative amount of Rupees six billion in damages with interest from several of the Ceylinco Group companies and its directors.


City checkpoint rejects media card

By M.Ismeth

A senior journalist of the Sunday Times and Daily Mirror was detained at an army check point at Kochchikade yesterday, though he produced his media Accreditation card issued by the government.

The reporter S.S Selvanayagam was released only after the News Editor of the Sunday Times spoke to the senior officer at the checkpoint.

The journalist said he had been asked by the officer to produce the Police Registration document, though the IGP had said that people need not always carry this document.

The Police Department in a media notice last week said:

"No person is required to carry with him the Registration document unless the person concerned volunteers to carry it and produces it on his own accord as an additional proof of his bona fides."

At Wellawatte yesterday commuters reported another incident where a youth was pushed out of a private bus by a conductor who allegedly said "If you are a Tamil you must be a tiger so get out."

On Wednesday a student of Hindu College Bambalapitiya was reportedly assaulted by commuters in a train after they found Tamil books in the bag he left on the baggage rack of a crowded train.


A dialogue with the Minister of Justice

The following dialogue took place between a Sunday Times journalist and the Minister of Justice and Constitutional Affairs in the course of a press conference given by Minister G L Peiris last week. We reproduce below the exchange sans comment.

ST: Mr Minister, it was said that where a two year sentence is imposed by court, there will be no suspension of such sentences in the future. The Editor of a national newspaper was sentenced to something like two years imprisonment, so according to these new laws, would you rather like to see this Editor in jail rather than see him free?

Minister: That's a matter for the courts.

ST: What I mean is that legislation is enacted with certain goals in mind; is your goal to see that Editors who are sentenced will be sent to jail?

Minister: These are matters for the courts.

ST: Mr Minister, you said (in the course of the press briefing ) that the government wants to brings the laws of the country in line with contemporary civilized norms. How about the laws of criminal defamation , which are not considered civilized anymore and not used in democratic polities. While all laws according to you, Mr. Minister, are forging ahead, why is there this procrastination with regard to the laws of criminal defamation?

Minister: That is a matter that is receiving the attention of the Parliamentary Select Committee.

ST: Mr Minister, how long will this mater have to receive the attention of the Select Committee?

Minister: It is receiving the attention of different Ministers who have been assigned the task of investigating the issue.

ST: Mr Minister, on the one hand the state moves with great alacrity and speed in enacting certain legislation which the state considers important, but when it comes to matters of Criminal Defamation, where the government obviously is perceived to have an advantage due to the use of criminal defamation against editors and there has been a very visible campaign against the press in the last few months there is all this procrastination and tardiness in getting the laws to fall in line with current day norms. Doesn't this fact smack of the hypocrisy of government?

Minister: You have made your speech and I have made my speech.

ST: It is not a speech, Mr Minister, it is a question

Minister: Any other questions?


The Sunday Times case

The case has not been proved

Mr. Marapana concludes submissions in The Sunday Times Editor's appeal

Submissions on behalf of the accused appellant were concluded by President's Counsel Tilak Marapana when the court resumed the appeal filed by The Sunday Times Editor, in the criminal defamation case on behalf of President Chandrika Kumaratunga.

It was submitted by Mr. Marapana that to establish a charge of criminal defamation three ingredients were necessary. If there was a reasonable doubt in regard to any one of these ingredients the accused was entitled to an acquittal.

First, that the article was defamatory. In this regard he submitted that what the judge had examined in his judgment was not the article itself but a paraphrased version of it. The article itself referred to 'a party' graced by the President. The judge had ignored this completely. The only objectionable references are to the time of the party and the use of the rear entrance to the hotel by the President. There were several stories published previously of the President attending dinners at hotels late at night. There was nothing damaging to the President's reputation by this reference. As to the rear entrance there was sufficient evidence that this entrance was as prominent as the front entrance. Besides it is right opposite Temple trees and the most convenient to be used by the President. Security reasons also may have been relevant in using this entrance. It was argued whether if the article was examined it could be concluded beyond reasonable doubt that it was defamatory. The exercise is to reach a conclusion without straining and giving extended meanings as the trial judge had done.

Second, it should be established that it was the accused who made or published this article. Mr. Marapana submitted that there was absolutely no evidence to connect the accused with having done so. The learned trial judge had heaped conjecture upon conjecture using a contradiction in the accused's statement to the police to come to a conclusion on this ingredient.

Third, the accused should have been shown to have intended to defame the President. The owner of the newspaper, Mr. Ranjit Wijewardena, was a close friend of the President. The defence produced numerous editorials and articles written by the accused himself encouraging and praising the President. Would the same accused defeat his own purposes and intentionally defame the President, Mr. Marapana submitted. To say the least there was at least reasonable doubt in this regard. The learned judge however has completely failed to take into account any of these matters.

In regard to the charge under the Press Council Law, it was submitted that the accused was pleading the benefit of the proviso to Section 14 of the Press Council Law. It was not a defence of mistake as the judge had misunderstood it to be. By pleading the proviso the accused was saying that he had no knowledge that by the publication of this article an offence was being committed.

This lack of knowledge would extend to a lack of knowledge of any one of the ingredients that are necessary to constitute the offence. This includes not only knowledge that the article was defamatory but also that the writer whoever it was had the intention to defame. This aspect has been completely ignored by the learned judge.

The proviso to Section 14 of the Press Council Law provides that the editor could not be convicted of an offence under Section 14 if the offence committed by the other person under Section 15 had been committed without the editor's knowledge. The editor was charged under Section 14 on the basis that someone else had published the defamatory article in the newspaper of which the accused was the editor. For an offence under Section 15 to be established, it must be established that a defamatory article was published in the newspaper, and as it comes under Section 479 of the Penal Code the intention to defame should also be established. Mr. Marapana said that if the accused did not have knowledge of any one of the ingredients necessary to be established under Section 479, then he could not have known that an offence under Section 15 was committed, and he was entitled to succeed on the proviso in that he had no knowledge that an offence was committed.

Mr. Marapana told the Appeal Court Bench comprising Justices Hector Yapa and P.H.K. Kulatilleke that just because the accused had knowledge of the publication of the article, it did not mean he had knowledge that an offence was committed by the publication. He said that whether or not the article is defamatory is a matter of law on which the judge has to come to an independent assessment, but that does not suffice for an offence under Section 479.

It must be shown that the person who wrote the article intended to defame the President. The accused was entitled to show that he had no knowledge that the writer intended to defame by publication of the article. If the accused knew the story was false, but still proceeded to publish it, then some malice could be established and an intention to defame presumed. But the accused had believed the article to be true, and therefore one cannot show intention to defame merely because the story was false.

Counsel told court that under the proviso the accused was entitled to show that he did not know the article was defamatory or that the writer, whoever it was, had intended to defame the President. But the trial judge had concluded that because the accused admitted knowledge of publication, he could not plead that he did not know that this would amount to criminal defamation. The judge equated the offence under Section 15 to be complete when the article was published and had not sufficiently examined the question of intention.

Moving on to the 10 day rule where it is directed that a judgment be delivered within 10 days of the conclusion of evidence, Mr. Marapana said the judgment had been delivered contrary to this rule.

He cited two judgments of the Supreme Court where it was held that a time limit laid down for a verdict to be given was mandatory and not directory. He told the Bench that if this non-compliance to the rule has caused prejudice or a failure of justice, then the verdict will be set aside as being illegal, and that the delay has worked against the accused and his rights have been prejudiced by this delay. He said the judge should deliver the judgment when the facts are fresh in his mind, and that the judgment would be impaired by the passage of time, and therefore there is some failure of justice in this case. This is demonstrated by the fact that none of the items favourable to the accused are considered in the judgment.

Mr. Marapana also said that where the charges are of a criminal nature, there is a burden on the prosecution to establish each and every ingredient beyond a reasonable doubt, and if there is a doubt with regard to any one ingredient, it must work to the benefit of the accused and towards acquittal.

Counsel also said the judge had not examined the article but chosen to paraphrase it and examine the paraphrase. He submitted that no reasonable reader would even remotely think that the President was indulging in immoral activity when attending the birthday party of Parliamentarian Asitha Perera as mentioned in the gossip column. He said the only remote way the article could be judged so is by the use of the word 'Epicurean', which the trial judge said was used to create an atmosphere of sensuous enjoyment.

Mr. Marapana however said that the average reader of The Sunday Times would be unfamiliar with the word 'Epicurean' and normally the court would ignore the word. But even if it didn't the court must satisfy itself with the evidence in the case as to what the word means. The defence cited the Oxford Dictionary meaning of 'epicure' as one who indulges in a refined way in the pleasures of the table and 'Epicurean' as a philosopher who identified pleasure with virtue, and that there was nothing about sensuous or sexual enjoyment and that no other dictionary meaning was given by the prosecution.

He said no reasonable reader would draw the inferences the judge has drawn such as to think that by using the rear entrance the President was seeking to shield her conduct and that the phrase 'heat of the silent night' implied a night masked by warmth of feeling. Mr. Marapana said the judge has ascribed the worst possible meaning from chosen phrases in the article to conclude that the article was defamatory, and has nowhere given thought to the fact that the article revolved around a party.

He asked the Bench if all the evidence had been considered in its proper light, could the judge not have had a reasonable doubt. He said the case has not been proved against the accused, and that if the various items in the case had been given due consideration, the accused would have been given the benefit of the doubt and been acquitted.


The end of the mend?

By Leon Berenger

A temple refuge for drug addicts on the mend in Dehiwala is facing an abrupt closure barely a month after opening up owing to the lack of space and other basic facilities including food, after donors who promised assistance failed to keep to their word.

The drug rehabilitation camp situated at Prathibimarama Road close to Kalubowila in Dehiwala was initially set up to accommodate some 35 inmates, but is now full, with nearly 80 addicts crowded together on the cement floor, as the organisers do not have the heart to turn away weeping mothers who beg to have their drug-addicted sons admitted there.

"The situation is bad. We may have to be forced to put up shutters since essential supplies like food, medicines and even water are not forthcoming, and the response from the local authorities so far has been lukewarm", says Ananda Perera, one of the main organisers who has put in a lot of volunteer work and spent sleepless nights to keep the camp going.

"The response from several donors who promised everything prior to the opening of the camp is depressing. Many of them have even failed to show up, leave aside their contributions. It is the same with the local political representatives. It has been all talk and no work", Mr. Perera lamented.

He said there are many wealthy people residing in Dehiwala who had been approached for some sort of assistance but they are just not interested.

"It is the common man in the village and some small time mudalalis, like the local baker, grocery store owner and even the fisherman who have helped out even in a small way and that is how we have managed to keep the camp going and looking after the basic needs of some 83 sick and weak male adults" he said.

"Most of the volunteer workers themselves have also dipped into their pockets in a bid to help out, but we cannot expect this to continue, and are now planning a picketing campaign along with the inmates in a bid to make the present grave situation at the camp made known to the village and the general public", he said.

Space is another major problem along with lack of sanitary facilities.

Alongside the hall in which the inmates live is a German funded building (Jeeva Loka Padanama) which comes under the purview of the Deputy Minister for Youth Affairs Jeewan Kumaratunga, which is not being used and could easily accommodate the large number of addicts who are experiencing the so-called withdrawal syndrome.

"If we could acquire this building then it would be easy to separate the freshers from the others, making it easier for volunteer workers to handle the growing number of those seeking to quit the deadly habit", says B.A. Sanath, another organiser of the project.

He added that appeals made to Mr. Kumaratunga regarding this empty building has fallen on deaf ears with the relevant authorities preferring to pass the buck.

"This is disgusting. All what we are trying to do here is help clean up society even in a small way, and officialdom adopts a 'don't care attitude' ", he said.

He explained: "Almost 90 per cent or more of those currently under treatment are having a crime record and many of them have gone to jail for theft, which is their easiest way of raising money for their next shot.

"They walked into the centre of their own free will with a desperate urge to quit the drug. Many of them have lost their families owing to this scourge and are now seeking a desperate way out to re-enter decent society, and it is only fair to help them out.

"We have been forced to turn away dozens of mothers who called at the centre with their sons since it will be idiotic to crowd the place any further with the restricted facilities currently available to us. If we could acquire the adjoining building it will no doubt help in a great way", Mr. Sanath said.

Another pressing problem is the lack of a steady water supply for bathing purposes, since the inmates require at least four to five baths a day, depending on their health condition.

At present the inmates are escorted in batches by volunteer workers to nearby public bathing wells.

The Municipal Council has helped out with some water bowsers but much more can be done by it, Sanjeewa Fonseka, another young volunteer worker said.

"It is also not fair by the inmates since their identities are exposed to the public during their trips to the bathing wells and in some cases they could be very embarrassing", he said.

What is keeping the organisers going despite the shortcomings is the eagerness of the inmates themselves to stick to the rehabilitation program. Some of them have also become volunteers and see to the needs of the freshers coming out of the so-called withdrawal syndrome.

Some of them have been addicted to heroin for 10 to 15 years. The signs of improvement shown by them are indeed very encouraging, said another social worker.

Their chief aim is to wipe out this scourge from the village, which will then see a sharp drop in the crime rate and to this end the help of the anti-narcotic police units will be of much help.

Plans are afoot to appeal to President Chandrika Bandaranaike Kumaratunga if things come to a head.


We are not demons says Tobacco giant

By Feizal Samath

The Government, for the first time, is to appoint a committee to look into concerns from the tobacco industry over planned legislation aimed at banning any form of advertising of tobacco products and reducing consumption, industry officials said.

The government and the tobacco and liquor industry have been at odds over plans to ban advertising of these products.The ban, which should have been enforced in January last year, was delayed due to industry protests.

"President Chandrika Kumaratunga told us she would appoint a committee to address our concerns over draft legislation and also give us an opportunity to meet this committee and express our views," Fred Combe, Managing Director and CEO of Ceylon Tobacco Co (CTC) told the Sunday Times on Friday.

CTC officials are likely to meet the committee this week. The committee, which is unconnected to the Presidential Task Force on Tobacco, Alcohol and Illicit Drugs, is also expected to address the concerns of the alcohol industry over the draft bill.

Mr. Combe and his senior officials, including Vijay Malalasekera, CTC's director of corporate and legal affairs, met Ms. Kumaratunga last Monday where the country's monopoly cigarette producer announced a voluntary code of ethics which bars advertising of tobacco products via the print and the electronic media, and on billboards and hoardings.

Ms. Kumaratunga said a National Authority on Tobacco and Alcohol (NATA) would be established under the planned tobacco and alcohol legislation. Members of the presidential task force and senior government officials were present at the meeting.

The CTC code would focus on issues discouraging young people from smoking and in addition to health warnings the quantities of tar and nicotine will be prominently displayed on the cigarette packets within a 12-month timeframe.

NATA, which will be a statutory body, will be empowered to advise the government on the implementation of the National Policy on Tobacco and Alcohol, and encourage and assist health promotion through media sponsorship and community-based projects.

Mr. Combe said he was happy the process of consultation - over the proposed anti-tobacco laws - had finally begun. "Our main concern earlier was that the draft bill was prepared without our views. The president has now given us the opportunity to start a dialogue, which had been denied to us and the alcohol industry," he said in an interview.

Industry sources said alcohol and soft liquor companies were also likely to consider enforcing a similar code of conduct to pre-empt the legislation. But with many companies involved in this industry unlike the tobacco trade, it would be more difficult to prepare a joint code for practice, one source said.

Mr. Combe said one of the reasons for enforcing CTC's code of conduct was to "demonstrate to the presidential task force that we are sincere about the tobacco issue."

"We are also people with reason. We are not demons as people make us out to be. We are people with families, children. We are human beings who deserve a reasonable hearing as far as these complex issues are concerned," he noted.

CTC is hoping that with the advent of the voluntary code, there won't be a need to enforce a ban on all forms of advertising. The company says it would continue to advertise at store level where cigarettes are sold.

Mr. Combe described the draft bill as one of the most draconian pieces of tobacco legislation in the world. "I don't want to sound dramatic, but the reality is that if the bill goes through as it is, we might as well pack our bags, shut the factory and go home."

Company officials said while the code officially came into effect on Thursday - when it was announced at CTC's annual general meeting -, most of its provisions have been gradually enforced in the past few months.

Mr. Combe said CTC had stopped advertising in newspapers, magazines, radio, television and cinema in whatever form, whether direct or indirectly. Sports sponsorship has stopped and 40 of the 47 plus cigarette billboards and hoardings across the country have been removed in recent months. "The balance few are being brought down," he added.

Mr. Combe, responding to concerns by anti-smoking lobbyists that the code was just voluntary and unlikely to be strictly enforced, said the company was committed to its enforcement. "We have our reputation at stake. We have to regulate ourselves otherwise our credibility goes."

The proposed advertising ban was recommended by the presidential task force under a National policy aimed at cutting consumption, particularly amongst youth, of harmful substances. Its report was presented in late 1997.

The government, accepting the recommendations, decided to enforce the ban in January last year after passing the necessary legislation in parliament but industry protests have stalled its implementation.

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