The Sunday Times Editor, following an order by the High Court Judge, stopping the defence from calling further witnesses in the criminal defamation case against him, has appealed to the Court of Appeal. We publish today the editor's petition seeking a fresh trial.
To his lordship the president and their lordships the honourable justices of the court of appeal of the democratic socialist republic of Sri Lanka.
The petition of the petitioner appearing by Vijitha Asoka Samararatne and Welisarage Sunil Fernando practising in partnership under the name style and firm of "SAMARARATNE ASSOCIATES" and their assistants Ms. Nimali Gunasekara, Miss. Shyamani Balasooriya and Miss. Sripali Ranasinghe his Registered Attorneys-at-Law states as follows:
1. The petitioner was indicted before the High Court of Colombo on two counts:
A) The first count was that he did by publication in The Sunday Times newspaper of l9th February, 1996 of words that were intending to read, namely, the following words that appeared under the heading "Anura: Sootin says courting days are here" :-
"Therefore, lets start at the top, a party graced by none other than Her Excellency the President, Chandrika Kumaratunga. The occasion was the birthday party of Liberal Party National List MP Asitha Perera (Well Mudliyar Chanaka - how?). The place was Mr. Perera's permanent suite at the 5-Star Lanka Oberoi. But this time the President was more circumspect about her appearance and used the rear entrance of the hotel, watched by a phalanx of security guards and myself."
"She spent about 90 minutes at the party, from about 12.30 in the heat of the silent night until 2.00 a.m. and, as for what she ate, we assure you; it was not food from the Hilton. The reading public now has a fair idea of its first citizen's epicurean tastes. But what of her estranged brother?",
published such imputation regarding Her Excellency the President of the Democratic Socialist Republic of Sri Lanka, Chandrika Banadaranaike Kumaratunga, with the intent to harm her reputation or while knowing or having reason to believe that such imputation would harm her reputation and that he had thereby committed an offence punishable under section 480 of the Penal Code.
B) The Second count, which was framed in the alternative to the first count, was that the imputation about Her Excellency the President Chandrika Bandaranaike Kumaratunga was made by the publication of the words referred to in count number one in The Sunday Times of l9th February 1995, and that such imputation was published with the intent to have the reputation of Chandrika Bandaranaike Kumaratunga harmed thereby, that the person who published the said imputation has committed an offence punishable under section 479 of the Penal Code read with section 15 of the Sri Lanka Press Council Law No. 5 of 1973 and that the petitioner who was the editor of the said newspaper has therefore committed an offence punishable under section 14 read with section 15 of the Press Council Law.
2. The petitioner pleaded not guilty to both the charges and the case proceeded to trial. The prosecution led the evidence of five witnesses namely, Ranjith Wijeywardena, Asitha Perera MP, Simon Perera, D. Wimalaratne and S.I.K. Waidyasekara and closed its case.
3. Whilst, the prosecution adduced evidence that the aforesaid words which constitute the subject matter of the charge were published in The Sunday Times newspaper of l9th February 1995, and that the petitioner was the editor of the said newspaper, no evidence was led to prove that it was the petitioner who wrote or published the said words and/or of any intention on the part of the petitioner and/or on the part of the person who wrote or published the said words to harm the reputation of Chandrika Bandaranaike Kumaratunga.
4. At the close of the case for the prosecution, the counsel for the petitioner made an application that the Petitioner be acquitted in terms of section 200 of the Code of Criminal Procedure Act, on the ground that the evidence given by the said witnesses failed to establish any charges against the petitioner.
5. The said application was made on the following grounds:
(a) The said words used were not per se defamatory of Chandrika Bandaranaike Kumaratunga;
(b) The requisite mental element to establish a charge under section 478 read with section 480 had not been established, and that;
(c) Even if "a" and "b" above had been established, it has not been established that the petitioner either published or had any connection with the publication of these words.
6. The defence counsel and the prosecuting counsel having made both oral and written submissions the learned trial judge by his order of the 23rd of May 1996 made order refusing the application of the defence and called upon the accused for his defence.
7. Being aggrieved by the aforesaid order of the learned High Court Judge the petitioner by application number CA381/96 made application to invoke the revisionary jurisdiction of Your Lordships" Court to revise the said order on the following amongst other grounds.
(a) The learned High Court Judge has by his aforesaid order made evident the fact that he has already found the petitioner guilty of the charges against him, and in the circumstances the petitioner has been deprived of the substance of a fair trial and the continuance of the trial before him (the learned High Court Judge) would therefore be an exercise in futility.
(b) The finding of the learned High Court Judge that the said words are per se defamatory of Chandrika Bandaranaike Kumaratunga is perverse in that the finding is not rationally possible upon the evidence adduced before him.
(c) The learned High Court Judge erred in holding that the said words were per se defamatory on the basis of what, in fact, were that which the learned High Court Judge perceived subjectively to be defamatory innuendos.
(d) The learned High Court Judge erred in arriving at his finding on the basis that the words in question were defamatory because of purported defamatory innuendos conveyed thereby in that the question of the innuendos that were capable of being conveyed by the said words was irrelevant to the issue in this action and not a ground on the basis of which he was entitled to call upon the petitioner for a defence inasmuch as the petitioner was not charged by the indictment of having harmed the reputation of Chandrika Bandaranaike Kumaratunga by means of any defamatory innuendos conveyed by the said words.
(e) The learned High Court Judge erred in the application of the standard of proof applicable to this case in that he failed to consider and/or give his mind to the question whether or not the words complained of were capable of a non defamatory meaning.
8. The said application No. CA381/96 was supported before Your Lordships' Court on the 27th of June 1996, and by order delivered on 2nd July 1996 Your Lordships refused the application without issuing notice on the Respondent.
9. The petitioner being aggrieved with the said order of Your Lordships' Court filed an application bearing No.336/96 in the Supreme Court for Special Leave to Appeal against the said order. The Supreme Court by their order dated 22.07.1996 refused the said application and dismissed the petition.
10. Consequent thereto the trial proceeded in the High Court of Colombo. The accused having testified on his own behalf called as his witnesses the following who testified at the trial:-
i. Dunstan Wickramaratne, a photo-journalist who had taken photographs of the "rear entrance" of Hotel Lanka Oberoi and produced same.
ii. Rohan Edirisinghe, a lecturer in law of the Colombo University who testified on what he understood of the matters set out in the alleged defamatory article.
iii. D.S.L. Witharana, a retired Superintendent of Police who had served in the Ministerial and Presidential Security Divisions (MSD and PSD) in regard to the practice of the use of "rear entrances" by VIPs for security reasons.
iv. Edmond Ranasinghe, Senior Journalist and Editorial Director who testified on his understanding of the alleged defamatory article and in particular the meaning of words such as "Epicurean tastes" and "Heat of the silent night" contained in the said article and also the role played by an Editor of a Newspaper.
v. Desmond Fernando, Presidents Counsel and President of the International Bar Association on his understanding of the words and phrases contained in the alleged defamatory article. (This witnesses evidence was not concluded)
vi. Rohan Fernando, a Chartered Accountant on the meanings attributed by him to the material contained in the alleged defamatory article.
The petitioner annexes hereto marked P7 a true copy of the proceedings of the trial in the High Court which he has obtained todate, his instructing Attorneys having applied for but not yet received the balance proceedings, and undertakes to furnish same as and when received by him.
11. The petitioner states that on 18.12.1996 the defence called Reverend Gnanabiwansa the Chief Incumbent of the Visudaramaya Temple who was the Patron of the Sri Lanka Mahajana Pakshaya (SLMP) of which Chandrika Bandaranaike Kumaratunga was the President at one time. After the said witness was affirmed the Prosecuting Counsel objected to the reception of this witnesses testimony and the Learned Trial Judge questioned the Defence Counsel as to the expected content of his testimony The petitioner states that his Defence Counsel informed Court that this witness would be testifying on two aspects, firstly, on his understanding of the alleged defamatory article and secondly the witness having been a close political associate of the Complainant, would be testifying on her habits an behavioural pattern. Having heard submissions of both the Defence and Prosecuting Counsel by his order dated 20.12.1996 the Learned High Court Judge concluded thus:
"For the aforesaid reasons I refuse the defence to call any more witnesses to testify in regard to the question whether the excerpt P3a - P4a alleged to be defamatory is, in fact, so (defamatory) or not".
The petitioner annexes hereto marked P8 a true copy of the said order of the Learned High Court Judge.
12. The petitioner states that both on a perusal of the reasons contained in the said order marked P8 as well as the remarks made by the Learned High Court Judge at the time of the delivery of such order, it was made very clear to the Defence that the witnesses whom the Judge had referred to in his order of 20.12.1996 (as witnesses refused to the Defence to be called) were all witnesses, including Rev. Gnanabiwansa who were to be questioned as to what they understood by the alleged defamatory article and the meanings ascribed by them to the words and phrases contained in the article.
13. Being aggrieved by the said order of the Learned High Court Judge the petitioner begs to invoke the revisionary jurisdiction of Your Lordships' Court to revise the said order on the following amongst other grounds that may be urged by his Counsel at the hearing of this application:-
(a) The said order is manifestly erroneous, unjust and contrary to law, violative of the fundamental principles of Criminal justice.
(b) That the said order deprives the petitioner who is charged with an offence of his entitlement to be heard at a fair trial a Right guaranteed to the petitioner by Article 13(3) of the Constitution.
(c) The Learned High Court Judge has misconstrued the testimony of the witnesses who had testified (and who were to testify) on behalf of the Defence in that these witnesses were merely expressing their opinion on whether or not the Article was defamatory, when in fact the substance of their testimony pertained to the meanings attributed by them to the contents of the article, and how they understood the Article.
(d) The Learned High Court Judge had erred in law when he ruled the testimony of witnesses who testified on the article (and who were to testify) as being irrelevant and inadmissible.
(e) That the said order of the Learned High Court Judge precludes the Accused from placing his defence before Court for consideration and he is thereby deprived of a fair trial.
14. The petitioner states that the Learned High Court Judge had permitted the Prosecution to lead evidence on the very matters he had subsequently by his order of 20.12.1996 held to be irrelevant and inadmissible, the Learned Trial Judge also permitted the Defence to call witnesses and lead such evidence and the Prosecuting Counsel to cross-examine such witnesses and elicit answers on such matters. The petitioner states that in addition to his being deprived of an opportunity to place his Defence before the Court he would be gravely prejudiced not knowing the outcome of such evidence and the case required to be met by him in the conduct of his defence in further proceedings to be held in this case. The petitioner further states that the Learned High Court Judge in his order of 20.12.1996 has not stated the manner in which this evidence would eventually be treated.
15. The petitioner further states that by the delivery of the said order which effectively deprives the Accused of submitting his Defence for consideration by the Court, the Learned High Court Judge has demonstrated that he has predetermined the guilt of the Accused and states that, taken in conjunction with the order delivered by the Learned High Court Judge on 23.05.1996 at the close of the Prosecution case and the incidental orders made by the Learned Judge from time to time in the course of the trial, some of which the petitioner has outlined below he verily believes that the Learned High Court Judge has displayed a bias in favour of the Prosecution in a way that precludes fair and genuine consideration of the charges levelled against the petitioner.
16. The Court permitted the Prosecuting Counsel to make statements prejudicial to the Accused over the publication of the news item published in The Sunday Times of which the petitioner is the Editor, pertaining to the transfer of stenographers from other Courts to the Court trying the Accused on the orders of the Secretary of the Judicial Services Commission and refused the Defence Application to summon the said Secretary of the Judicial Services Commission to establish the truth of the said Publication.
17. The petitioner further states that the Learned High Court Judge has permitted the Prosecuting Counsel to cross-examine all the defence witnesses at an unusual length affording him an opportunity to question such witnesses on totally irrelevant matters much to their embarrassment over-ruling the repeated objections raised by the Defence Counsel. The petitioner states that the sole object of such questioning was for the purpose of dissuading other witnesses from testifying on his behalf.
18. The petitioner states that with the commencement of the Defence evidence the Learned High Court Judge expressed his desire to continue the trial on a day to day basis and despite being informed that the petitioner's Senior Counsel and many of the other Counsel appearing for the petitioner had already undertaken work in other Courts and would therefore be unable to attend this Court uninterrupted on a day to day basis, the Learned High Court Judge made order to proceed with the trial on a daily basis commencing 08th November 1996. The petitioner states that in the result he was deprived of the services of his Senior Counsel and many of the other Counsel appearing for him on several dates of trial thereafter constituting a denial of the petitioner's right to legal representation.
19. The petitioner further states that the trial commenced on 08.03.1996 as at which date or soon thereafter there was a vacancy in the Court of Appeal which vacancy in the ordinary course of events could have been filled by the appointment of the Learned High Court Judge who is hearing this trial, he being the most senior of the High Court Judges and that todate the said vacancy remains unfilled thereby creating a public perception that the question of the selection of the appointee would depend on the outcome of this case where the petitioner is Accused of Criminally Defaming Her excellency the President who under the Constitution appoints Judges to the Court of Appeal.
20. The petitioner further states that the appearance of bias would fail to ensure that justice should manifestly and undoubtedly be seen to be done and could therefore question the legitimacy of the decision making process.
21. The petitioner states that by the order of the Learned High Court Judge made on 20.12.1996 he has been denied the opportunity of placing before Court relevant and admissible evidence so basic to his defence that it would amount to the total denial of a consideration of the petitioner's defence. The petitioner states that further proceedings would therefore amount to an illegality such as would occasion a failure of justice.
22. The petitioner states that the following exceptional grounds warrant and justify the invocation of the revisionary jurisdiction of Your Lordships' Court at this stage of the proceedings in this case.
(a) The order of the Learned High Court Judge made on 20.12.1996 has the effect of denying the petitioner the opportunity of placing his defence for consideration, such denial necessarily vitiating further proceedings in the Trial.
(b) The Learned High Court Judge having demonstrated that he has predetermined the guilt of the Accused any further Trial would be devoid of a fair and genuine consideration of the charges levelled against the petitioner.
(c) The petitioner being deprived of a fair Trial if convicted without even the consideration of his Defence the petitioner pleads real danger of being incarcerated and deprived of his personal liberty at the conclusion of the trial at least until the application for Bail is concluded although the petitioner is not liable to be incarcerated and deprived of his personal liberty in this illegal way.
23. The petitioner states that in the circumstances enumerated above that further proceedings in the trial against him would amount to an illegality and that this is a fit and proper case for Your Lordships' Court to intervene at this juncture in the exercise of the revisionary powers of Your Lordships' Court to stop further proceedings in this trial and acquit the Accused on the charges levelled against him. In the alternative the petitioner states that Your Lordships' Court should in the least stop further trial, quash the proceedings taken so far and direct that the trial be commenced de novo before another Judge of the High Court.
24. The petitioner states that the further Trial in the case is now fixed for 09.01.1997 and should further trial be permitted to be continued in this case grave and irreparable prejudice would be occasioned to the petitioner and that this is a fit case for Your Lordships' Court to exercise its revisionary jurisdiction to issue a stay order preventing further proceedings until the final determination of this Application.
25. The petitioner states that other than for the Application bearing No. 381/96 made to Your Lordships' Court and referred to hereinbefore, he has not previously invoked the jurisdiction of Your Lordships' Court in respect of the matter.
WHEREFORE THE PETITIONER PRAYS THAT YOUR LORDSHIPS' COURT BE PLEASED TO:
(a) Call for and examine the record of the proceedings in case No. High Court of Colombo 7397/95.
(b) Issue Notice on the Respondent and make order staying all proceedings in this case before the High Court until the final hearing and determination of this application.
(c) Make order quashing the proceedings taken before the High Court from the commencement of the Trial including the order delivered cn 20.12.1996 and any proceedings taken thereafter.
(d) Make order acquitting the Accused-Petitioner or in the alternative that the Accused-Petitioner be tried on the Indictment filed against him at a Trial de novo before another Judge of the High Court.
(e) Grant such further and other reliefs as Your Lordships' Court shall seem meet.
Attorneys-at-Law for the Petitioner.
Forgiveness and reconciliation are always possible in the case of excommunicated priest Fr. Tissa Balasuriya if there is "an authentic conversion of heart," a spokesman for the Catholic Bishops told The Sunday Times as a crisis brewed in the church.
Kandy's Bishop the Rt. Rev. Vianney Fernando, president of the Catholic Bishops Conference of Sri Lanka (CBCSL) said the church was praying that Fr. Balasuriya would "rediscover the path of correct doctrine and of filial love of Mary Immaculate."
Excerpt from the interview:
Q: The Catholic Bishops' Conference of Sri Lanka asked the faithful not to read Fr. Balasuriya's book since it would cause irreparable damage to their faith. Don't you think more people are keen to read the book after the publicity given to it by the Church?
A: The Bishops have the duty to warn the faithful of anything that would constitute a danger to the faith according to Canon 823 para 1: In order for the integrity of the truths of the faith and morals to be preserved, the pastors of the Church have the duty and right to be vigilant lest harm be done to the faith or morals of the Christian faithful through writings or the use of the instruments of social communications, they likewise have the duty and the right to demand that writings to be published by the Christian faithful which touch upon faith or morals be submitted to their judgement; they also have the duty and right to denounce writings which harm correct faith and good morals.
Yes, it is possible that more people would be keen to read the book due to the publicity it has received. But the faithful also would know that it contains statements which are erroneous and contrary to the Catholic faith.
Q: Many Catholics are leaving the Church to join other Christian communities. Don't you think this action of the Church will cause those on the margin to lose confidence in the Church? Can you tell us what the Church has gained by this action?
A: The strength of the Church is in its constancy in teaching and preaching the doctrine of Jesus Christ, be it in faith or morals. Some aspects of the teachings of the Church demand personal sacrifices from the Christians. But the Church has to be faithful to its mission in teaching the correct doctrine. In the last analysis fidelity to Christian teachings is not easy and that is why we pray everyday for God's grace to help us from our tendency to evil. The Church teachings are based on the Mystery of the Cross, which asks of every Christian to be faithful, even in extreme adversity: "Whoever loses his life for my sake will gain it."
Q: Don't you agree that it is only fair that you tell the public that Fr. Balasuriya did sign the profession of faith (POF) drafted by Pope Paul VI, but that it was not accepted because the Church now finds it inadequate?
A: It is true that Fr. Balasuriya made the general profession of the faith drafted by Pope Paul VI. But having signed it, he had added a condition as follows "I, Fr. Tissa Balasuriya make and sign the Profession of the Faith of Pope Paul VI in the context of theological development and Church practice since Vatican II and the freedom and responsibility of Christians and theological searchers under Cannon Law" and so, the notification notes that "prescinding from the fact that the author has responded with a text different from the one requested, the addition of such a clause rendered the declaration defective, since it diminished the Universal and permanent value of the definition of the Magisterium.
Q: Is it not correct that Fr. Balasuriya repeatedly requested the Vatican officials who drafted the POF to validate the same by signing it themselves so that in a crisis of conscience he could have the support and consolation that this was the true teaching of the Church? Why was this not done as an act of good faith by the Church?
A: After the CDF took over, the correspondence was among the CDF, the Oblate Generalate and Fr. Balasuriya. All letters were channelled through the Oblate Generalate. Even the Profession of the Faith was given by the CDF to the Oblate Superior General to be handed over to Fr. Balasuriya. I think this, therefore, is the correct channel to authenticate this document. As I mentioned earlier in this interview, the sources of all articles of the faith that are required to be affirmed in the profession of faith are indicated in the POF.
Q: Since the POF constitutes the current teaching and doctrine of the Church, what steps is the Church taking to replace the POF which is now part of the liturgy of the word, with the POF which Fr. Balasuriya has been asked to sign?
A: As explained earlier in this interview, the General profession of faith, used in the liturgy of the Mass, is the basic profession of all Christians. This will not be changed.
Q: Don't you agree that the decision of the Church taken in conjunction with the Pope's remarks will convince people that the Church wishes to dominate its doctrinal teachings on society?
A: The doctrinal teachings of the Church is intended to guide the faith and morals of the faithful and of all peoples of goodwill. The Church teaches what Christ has handed down to us through the Apostles. As Pope John Paul II says in the Apostolic Constitution, "The deposit of faith" on the catechism of the Catholic Church, "Guarding the deposit of faith is the Mission which the Lord entrusted to His Church, "Guarding the deposit of faith is the Mission which the Lord entrusted to His Church, and which she fulfills in every age."
Q: According to the Vatican, Fr. Balasuriya has committed a grave sin and has been excommunicated. That means he cannot even receive the Sacrament of Confession and Reconciliation and Extreme Unction. Does that mean that a God of infinite and unconditional love will now send him to Hell?
A: Reconciliation and forgiveness are always possible in the Church. What is needed is "An authentic Conversion of heart which opens the path of reconciliation. The Holy Father himself hopes and prays that the author "will rediscover the path of correct doctrine and of filial love of Mary Immaculate from whom the Congregation (OMI) takes its inspiration. "
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