Who thought of bringing criminal defamation back?
Apparently, the inspired legal mind who had suggested to President Mahinda Rajapakse that the law of criminal defamation should be brought back to our statute books had done so on the brilliant reasoning that this was necessary as civil proceedings are not proceeded with at the expense of the State but of the individual concerned. It was suggested to be much better, (instead of protracted and expensive civil proceedings) therefore that, state resources should be used to prosecute media personnel who step out of line.
These boringly déjà vu arguments reflect precisely the same rationale by which criminal defamation provisions had been unceasingly employed against journalists and editors particularly in the nineties; in other words, politicians, (inclusive of ministers and the head of state) launched prosecutions willy-nilly against the private media, using tax money for this purpose and wasted the time of court in cases that would never have seen the light of day if it was not for the very fact that they did not have to expend their own resources in the matter.
So, this argument that criminal sanctions are necessary as state money can be used for the purpose should be scorned for the nonsense that it is; lawyers who revert to such arguments to advise the chief executive to reactivate the criminal defamation provisions should acquaint themselves with the well established reasoning of the Supreme Court that public funds that are held in trust by the government cannot be abused for the benefit of a particular political party. Though this reasoning has been mainly applied to use of public property and persons, the same applies logically to the abuse of state resources to frivolously prosecute whenever the President or his many ministers feel affronted by one particular news item or another.
This is however, not to say that the media is angelic in any sense of the word. Rather, it bears a great deal of responsibility for the crisis of governance that is evidenced in all forms, whether it be in regard to the constitutional process, the conflict or simple issues of basic rights of persons. However, the remedy for this is not to bring criminal defamation back on our statute books. As in the case of our politicians or our judges, we only get the media we deserve. It is up to public opinion therefore, to teach journalists who indulge in character assassination or persistently inaccurate reporting, editors who follow a partisan or political party line and the newspapers in which they write, a fitting lesson in making sure that they lose credibility in the public sphere. This fate has, in fact, befallen a number of media persons as well as newspapers in Sri Lanka and remains the best sanction of all, rather than court trials in which the technicalities of the law tend to predominate over ethical credibility.
There is no doubt that this draft provision of the Rajapakse administration, doing away with Amendment Act No 12 of 2002 (which had repealed Chapter 19 of the Penal Code and made consequential procedural amendments to Section 135 (f) of the Criminal Procedure Code in June of that year) should never have made it to a Cabinet meeting in the first place. The fact that it did so and the fact that what saved the draft from being accepted by the Cabinet was the courageous dissent by certain Ministers says a lot for the mentality with which governance proceeds today.
It is appropriate therefore to remind ourselves of the true import of this law during the time that it was in force, as public (as well as political memory) is notoriously short. Criminal defamation, defined in Section 479 of the Penal Code, had been punishable under Section 480 of the Code with simple imprisonment not exceeding two years or with fine or with both. Safeguards against arbitrary and politically motivated prosecutions had been available earlier in the Criminal Procedure Code including the requirement that proceedings must first originate in the Magistrate's Court with the written sanction of the Attorney General pursuant to an investigation by the police, after obtaining the authority of the Magistrate.
However, these safeguards were abolished by the Jayewardene administration in 1980 with the objective of using the provisions for whatever political witch hunt that it deemed necessary. As would be recalled, Amending Act No 52 of 1980 added Sections 135 (6) and 393(7) to the prevailing provisions of the Criminal Procedure Code primarily to counter a bold ruling by the Court of Appeal in R.P. Wijesiri vs The Attorney General (1980, 2 SLR, 317), to the effect that the Attorney General had no power to send a direct indictment to the High Court in a criminal defamation prosecution without lawful investigation by the police and preliminary inquiry by the Magistrate. The case concerned a Member of Parliament charged with criminally defaming President JR Jayewardene on a direct indictment issued by the Attorney General to the High Court, the validity of which was challenged.
The filing of criminal defamation indictments thereafter against the media became commonplace. One oftentimes bypassed fact is that in the entire legal history of this country, only one criminal defamation prosecution had been instituted at the bequest of a private individual (as opposed to politicians). This instance concerned the publication of a book allegedly defamatory of a judge. Though charges were served on the publisher, the case was later settled.
For those politicians, including the President and his brothers who have apparently been afflicted with aggravated sensitivity regarding media reports against them, criminal sanctions should be the most outlawed alternative. It was purely by the indiscriminate use of such tactics that the Kumaratunge administration fell into extreme disfavour with the media with which it was once on the best of terms. Assuredly, though we are condemned, by bad judgment, to tread unwise roads of the past time and time again, criminal defamation surely need not be one of them?