 Chandrika Kumaratunga-the virtual complainant |
 Upali de Z. Gunawardena- the judge |
Continued from last week
By no stretch of imagination can it be said that, at least, some people would think the above statement viz. that Her Excellency the President spent “90 minutes in the heat of the silent night in Asita Perera’s suite” to be anywhere near commendatory or complimentary or that the relevant phrase was to Her Excellency’s credit. Even if one were to assume that the statement in question as regards Her Excellency is one about which most people, perhaps, would be indifferent but which a small group of people would react to strongly, yet in principle, Her Excellency the President must be held to have lost reputation. In principle, it does not matter, even assuming for the sake of argument, that the majority of people would be in the indifferent group for as Holmes J. said in Peck vs. Chicago Tribune there should be liability “if the statement obviously would hurt the plaintiff in the estimation of an important and respectable part of the community”. As Holmes J. continued: “Liability is not a question of majority vote.” The difference between the case referred to above where the police were informed of gambling at the club and the case in hand, namely the statement concerning Her Excellency is this: in the club case, referred to above, some people, at least, would have thought the act of informing the police about gambling to be a commendable act of a public spirited man. But none, although some would have been indifferent, would have thought the better of Her Excellency upon reading the article concerning her and those who were not indifferent would have thought the worse of Her Excellency.
More than once, the learned defence counsel, at various stages of the trial, argued that the article concerned - appearing as it did in the Gossip Column - was meant or intended not to be taken seriously and inasmuch as there was no likelihood of the readers believing what was said about Her Excellency in the relevant article - the statements therein as regards the President’s conduct couldn’t possibly have had a deleterious effect and as the President’s reputation would not have been injuriously affected in consequence of the said statements the offense of defamation could not be constituted. In fact, it is to be recalled that some of the defence witnesses also said so. (But the reasons for holding opinion evidence to be inadmissible will be given in due course as supplementary to those given in my order dated 20.12.1996)’. It is one of the remarkable principles pertaining to the offense of defamation that a statement to be defamatory need not be believed.
To give the exact reference to authority for this proposition: In Text Book on Tort at page 545 David Howarth has summed up this aspect in the following terms: “ A statement can still be defamatory even if, in fact, no one believed it. THE TEST IS NOT WHETHER, FOR EXAMPLE, THE STATEMENT DID IN REALITY LOWER THE PLAINTIFF IN THE ESTIMATION OF RIGHT THINKING PEOPLE BUT WHETHER IT WOULD HAVE DONE SO IF IT HAD BEEN SO BELIEVED. In a civil case the number of believers may be relevant to the extent of the loss but not as to whether there was defamation at all.”
Further it is stated in Gour’s Penal Law of India. (10th edition) at page 4220 thus: “To constitute the offence, (i.e. defamation) under Section 500 of the Indian Penal Code, it is not necessary that the evidence, shows that the complainant had been injuriously affected by such alleged defamation.” This was the view expressed by a (i) Divisional Bench of the Calcutta High Court in Govinda Prasad vs. G.L. Gortha by (ii) the Patna High Court in Jaganaath Mishra vs. Ram Chandra and by (iii) the Bombay High Court in Alex vs. Emperor.
In this regard it would be instructive to refer to the case of Ram Narayan vs King Emperor AIR 1924 ALL 566. In that case the accused published a pamphlet in Hindi defaming by describing in words which when translated into English meant, “gentleman scoundrel’ It was contended that it has not lowered the moral and intellectual character and no offense i.e. the offense of defamation was not committed. Daniel’s J. stated: “The argument overlooks the fact that a person commits defamation....... who publishes any imputation concerning any person intending to harm the reputation of that person whether harm is actually caused or not. A person who publishes defamatory statement against another .........cannot escape punishment on the ground that the reputation of the person attacked was so good or that of the persons attacking so’ bad, that serious injury to the reputation was not, in fact, caused.” To quote from Gour (l0th edition) page 4137: “From this it is clear that a person who makes an imputation against another need not obtain credence from the public. In fact, he may then and there be discredited - the reputation of the complainant may be too well established - to be shaken by scurrility. But the law protects one by punishing the other on account of the .........TENDENCY TO CAUSE HARM. It is one of those cases in which the law punishes the archer as soon as the arrow is shot no matter if it fails to hit the target. In a decided case Senthinathaiyar vs Gnanamuttu (1884) 1 WEIR 575 it was held that: “ It may happen that defamer defeats his object by the very fact of his exaggeration in which case his imputation carries with it its own refutation or contradiction but in that case, surely, he could not be heard to say that he was exempt from punishment because nobody could be found to believe in his libel”.
Now, it would be clear why in my order dated 20.12.1996 (disallowing opinion evidence) and also at page 254 hereof quoting from an Indian judgment, I stated that defamation is one of those cases where the law punishes the archer as soon as the arrow is shot no matter if it fails to hit the target - although at that time that statement was seized upon with perversity and misinterpreted to allege that I had prejudged the case. TENDENCY TO HARM THE REPUTATION INHERENT IN THE WORDS - ALTHOUGH IT NEED NOT HARM - IS ALL THAT MATTERS for as Salmond stated: “ A tendency to injure or lower the reputation of the plaintiff suffices or if words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation and may even know that it is untrue” as was held in Hough vs London Express (1940) 2 K.B. 507. Hence it is settled that a statement may be defamatory although no one to whom it is published believes it to be true as had been decided in Morgan vs Odhams Press Ltd. (1971) 1 WLR 1239 and Theaker vs Richardson (1962) 1 WLR 151.
This excerpt regarding Her Excellency the President evinces an increasing lack of scruple on the part of the agents of mass media catering, perhaps, for the appetite, of the “prurient” public. At a time like the present when the law ought to evince a solicitous regard for safeguarding reputation and honour against defamation - I am more than intrigued to hear that somebody had appointed a committee to look into the question of abolishing the offence of defamation and that committee had, in fact, unanimously recommended its abolition according to the evidence of a defence witness viz. Mr. Rohan Edirisinghe. It would be shutting one’s eyes to reality without any corresponding social benefit whatever to withhold the protection of the law from someone whose name has been tarnished or whose image has been blackened.
The sacred principle or the purpose that basically underlines or accounts for the retention of the law of defamation in all civilized systems of law without exception seems to be succinctly set forth in Shakespeare’s Othello as follows :-
“Who steals my purse steals trash;
’tis something, nothing,
But he that filches from me my good name robs me of that
which not enriches him and
makes me poor indeed.”
And as Tom Crone said: ‘the legal rationale was expressed less poetically but with great clarity” by Justice Potter Stewart of the American Supreme Court as follows :-
“The right of man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept which is at the root of any decent system of liberty .
Murdering a man’s reputation by a libel had been compared by Bacon to murdering a man’s person although Shakespeare (in a different context) had made light of it by likening reputation “‘to a circle in the water which never ceaseth to enlarge itself, till by broad spreading it comes to nought”. And the latter comparison seems to be truer, as a universal rule of all Heads of State including crowned heads. Provisions in the Penal Code, which is such a consummate piece of legislation as it is, recognising that personal character is a man’s best asset, has already struck just the right balance between its malicious and wanton assailment on the one hand and justifiable exposure on the other. The relevant section (of the Penal Code) whilst constituting malicious assailment of character and offence - yet secures and protects justifiable exposure through the ten exceptions (defences) enunciated in the code itself. Section 479 of the Penal code creating the offence of defamation is as flawlessly and exquisitely a balanced section as one can hope a section or the law to be and there is neither the need nor the room to improve what is already perfect and faultless.
One of those who had served in that committee recommending the abolition of the criminal law of defamation in Sri Lanka namely, Mr. Rohan Edirisinghe, gave evidence at the trial as a witness for the accused and his evidence was as follows:-
Q : Do you know who framed the Penal Code?
A : I believe the British. I think Mr. Stevens. “(13.11.96 - 1.50 p.m.)
To quote from witness’s evidence:
Q: What are the elements of criminal defamation?
A: They are -in the Penal Code. ( 11,11.1996 - 12.05 p.m.)
Q : I asked whether you are aware?
A: I do not have them in my memory.” (11.11.1996 12.05 p.m.)
It is well known that Stephen had nothing more to do with the Penal Code than Lord Macaulay had to do with the Evidence Ordinance.
“Q: So you said clearly that you .are not familiar with the provisions of the Penal Code relating to defamation?
A : Yes. I said so.”
It is to be observed that it is only by repealing the relevant provision or section in the Penal Code creating the offence of defamation - that criminal law of defamation can be abolished in Sri L.anka. So that on witness’s own showing he had recommended the abolition of something of which he had no adequate conception or had just an inkling at best. It will be recalled that on 20.12.1996 I made an order ruling out opinion evidence on the basis that such opinion evidence to the effect the relevant article was not defamatory was irrelevant. It is the first rule of evidence, and one to which there are no exceptions, that irrelevant evidence is wholly inadmissible.
A word, as to why the court refused to allow opinion evidence that the excerpt relevant to the indictment was not defamatory, would not be out of place in this judgment.
A general rule we have met with in the area of law of evidence is that a witness should give evidence of things within his knowledge and not of things told to him by others. It is, more or less, another aspect of the same rule that a witness should testify as to facts within his own knowledge that he (the witness) should not express his opinion about what conclusions the court should draw from those facts. If the judge is bound by the opinion expressed by the witness, it would, as I stated in my order dated 20.12.1996 disallowing opinion evidence, invest the witness with the character of the judge. Perhaps, the judge would then be ousted, by the witness, from the seat of judgment which would, indeed, be an intolerable result. Irrelevance of opinion evidence arises from the inveterate and time-honoured legal position that it is the judge or the tribunal of fact and not anyone else who is under a duty of reaching a finding or decision on the issue or issues or points of contest in the case.
In fact, our Evidence Ordinance, makes no provision whatever for any witness to express an opinion unless that witness is an expert and an expert’s evidence is admissible only when there is a real need for expertise - for on some issues the court is unable to reach a proper conclusion unless it is given assistance because its own experience does not allow it to assess the evidence accurately. The function of an expert witness is to assist court by giving evidence of his opinion on matters of specialised knowledge on which his assistance is necessary. Even then, it is necessary to note, that even an expert is precluded from expressing an opinion on an issue in the case or on the ultimate issue in any given case - the reason being that he (the expert) would thereby usurp the function of the court. For instance, an expert witness may be asked to describe the mental condition of an accused but might not be asked whether the accused was insane - if that was the basic issue that the court had to decide. Thus, in a case where an expert’s evidence is relevant and admissible, even then the court should retain the power to stop the expert short of doing his (judge’s) work. It would be somewhat helpful to refer in this regard to Federal Rule of Evidence 704 which provides: “ No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting the element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.”
Clearly, in this case before me the witnesses whom the defence called or sought to call are not expert witnesses. Nor did the defence even seek to present them as such. In the case before me, the issue is whether the excerpt regarding Her Excellency the President is defamatory or not. The issue in the case being whether the excerpt in question is defamatory or not - lt is an issue which the court is able to use its own experience to decide without the need for reliance on experts or any other witness. The defence sought to present those witnesses as “reasonable men’. The judge does not cease to be a reasonable man because of his knowledge of the law - knowledge of the law, in fact, increases one’s understanding of affairs - not only skill in argument and interpreting the written word. Because of his knowledge of the law a judge has, as good an understanding,. if not a better understanding of social values than an ordinary layman, which well equip him ( the judge) to decide whether the excerpt in question is defamatory or not by applying his standards.
For example, in Stanford (1972) 2 Q.B. 391 the question whether an article was “indecent or obscene” was held by the Court of Appeal of England to be one for a jury (where the trial was by the judge with, a jury) to assess by applying their standards - so that definition of indecent or obscene “ may change from time to time as the standards of the society change. (It is well known that in a trial by jury the jurors are the sole judges of facts and not the judge.) Similarly in D.P.P. vs Jordan (1977) AC 699 the House of Lands held that whether publication of an obscene article was for the public good was a matter for the jury - the jurors being the judges in regard to question of facts. It was argued that expert evidence should have been admitted to show that the item of pornography in question would have benefited certain people, but was held that it was for the jury to assess whether it was for the public good generally. In the end the case revolved around the proper construction of the phrase: “ for the public good” - in section 4 (2) of the Obscene Publications Act 1959. But it was held that whether an article is obscene was within the province of the jury as well as the issue whether it was for the public good. Inasmuch as in this case (in which the editor of The Sunday Times is indicated) there is no jury - the functions, which would otherwise have been performed by the jury, devolve on the judge who becomes a trier of fact as well.
In Turner (1975) Q.B 834 was charged with the murder of his girlfriend. He said in his defence that he was provoked by her informing him that while he was in prison she had slept with two other men. The accused was not allowed to call a psychiatrist to give evidence about his opinion of the likelihood of the defendant ( the accused) having been provoked by what his girlfriend told him. There was no suggestion that the accused suffered from any mental illness. So the issue was whether the same defendant (accused) was provoked. Lawton LJ said: “Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the strains and stresses of life.” Further the Court of Appeal of England said: “Psychiatry has not yet become a satisfactory substitute for the common sense of juries or magistrates.”
In R. vs Davies (1962) I WLR 1111 the facts, shortly stated, were as follows:- “There was a car crash in Germany and the driver was charged with driving while unfit to drive through drink. A witness was called by the prosecution to give opinion evidence of the condition of the accused.
Upon an appeal on the admissibility of the opinion evidence Parker CJ held that while a witness could state the observed facts - he (the witness) could not go further and say that he (the driver) was not fit to drive. It was further held that the condition of the driver and his fitness to drive is a matter for the court to decide upon.
One would do well to remember that the judges are not visitors from outer space and they, in any event, do not need the opinions of witnesses to be able to form an opinion in regard to a matter or question of ordinary human experience which, in fact, is the central point that arises for consideration in this case viz. whether the relevant article could reasonably be held to be defamatory or not.
It was pointed out at: page 248 hereof that the reaction or attitude of some of the readers would have been marked by lack of interest, indifference or even neutrality but none would have thought the relevant article to be complimentary or laudatory of Her Excellency - although some others who were not in the indifferent group and who did, in fact, react, would think that the article was to the utter, discredit of Her Excellency the President. It is of interest note that even some of the defence witnesses, be it noted, the earlier defence witnesses, who were called (by the defence) for the express purpose of saying that the relevant article was not defamatory ended up by saying that it was quite possible that even some “reasonable men” would have understood the relevant article in a defamatory sense. To quote from Mr. Rohan Edirisinghe’s evidence.
“........It is a matter of opinion...........”
Q : Although you did not think it is defamatory there may be so many others who have thought it defamatory?
A : Yes. (11.11.1996 - 12.35 p.m.)
Q: The fact is that there may be right thinking men who would consider this defamatory?
A : I believe so.”
However, one cannot be impervious to the tall credentials of this witness and consequently, to his opinions, as expressed above, although he was professedly not that familiar with the elements of the offence of defamation as defined in the Penal Code, the abrogation of which offence, ironically enough, he had recommended.
Mr. Rohan Edirisinghe was not the only defence witness who conceded that the relevant article may be defamatory in the eyes of some readers. Mr. Edmond Ranasinghe, also a defence witness had on 26.11.1996 (2.15 p.m.) said thus:
“Q : What you are saying is though you may not consider this article relating to the President defamatory there may be others who consider it defamatory?
A : Yes. That is according to some.
Q : Do you concede that there may be others who consider this to be defamatory?
A: That is right.
Q: There can be two schools of thought whether the article is defamatory or not?
A: Yes.”
And on 27.11.1996 (10.30 a.m.) Mr. Ranasinghe had further said as follows: “There may be reasonable men who will think that the article is defamatory.”
In the written submission filed by the defence on 04.06.1997 that is, the last date of submissions, it has been stated, at paragraph 14, that the accused bona-fide believed the article to be non-defamatory”. It was also submitted at paragraph 16 of the same statement of submissions as follows:- “The accused could have knowledge of the publication and yet have no knowledge that offence is committed by such publications.” The above argument has, of necessity, to be rejected because it is the publication that is the commission of the offence for if there was no publication there would not have been a “commission of an offence.”
It was argued by the defence that “good faith of the accused” was the decisive test. The defence argument repeatedly made on several dates and finally on 04.06.1997 was that, since the accused in good faith believed the relevant excerpt to be non-defamatory - even assuming that the article was, in fact, defamatory - in the opinion of the court - yet it ought to be held that the accused had “no knowledge that an offence is committed by such publication.” Simple answer to this argument is to be found in Salmond. To quote” The meaning to be attached to words is decided not with reference to the opinion of the person responsible for their publication - nor even according to the opinion of the writer but according to the meaning which may presumed to be reasonably given to it by the person to whom it is published (the reader). A defamatory purpose will not render the defendant liable if the statement has for others (readers) no libelous significance. Conversely, an innocent intention or knowledge will be no defence to a person who makes a statement which has a defamatory meaning for those to whom he makes it as had been held in Hulton Co. Ltd. vs Jones 1910 AC 20.
In the course of his oral submissions the learned President counsel argued on 05.05.1997 that “good faith” of the accused is the decisive test. His argument was that if the accused bona fide believed the article to be harmless - as the accused did, in fact, believe as the counsel said - the offence must be held to have been committed without the knowledge of the accused who must be acquitted on count 02 for in terms of section 14 of the Press Council Law which states thus: “Provided that no such person shall be guilty of an offence if he proves that the offence was committed without his knowledge.....”
The same argument had been reproduced in the written submissions of the defence filed on the last date of oral submission i.e. on 04.06.1997 - Vide para. 16.
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