Hulftsdorp Hill

17th May 1998

Govt. makes criminal defamation civil defamation

By Mudliyar

Many politicians in the South East Asian region deem the State of Singapore as their ideal. The utopian state may be a dream, but to them the realistic manifestation of that dream state is Singapore. They were awed by the development and the stability till recently.

Corruption, scandal or scam is not in the vocabulary of the pen pushers in Singapore. If a journalist accuses any politician of even a minor misdemeanour action is filed for defamation and the damages awarded are astronomical and the press is closed and the journalist thrown into jail. Mr. Lee Kwan Yew, the former Prime Minister, the father figure and the great helmsman who changed Singapore from a backward colony of opium addicts to a modern city state, has recently created a world record. His name will enter the Guinness book of records as the person who has been awarded the largest number of defamation damages in the history of English Law. From the time he rose to power he has filed 8 major defamation suits, and been awarded more than $ 2 million in damages, and in addition he is believed to have been paid several hundred thousand dollars in out of court settlements. He has never lost an action in court, and is now the most successful individual defamation litigant the world has known. He and his colleagues used these laws to combat their political opponents.

Even a comment which appeared in the 'International Herald Tribune' quoting an academic that unnamed intolerant regimes in Asia were using a compliant judiciary to bankrupt opposition politicians, resulted in nearly $ 365,000 being paid to Mr. Lee. Mr. J. B. Jeyaretnam, the Workers Party leader who has his roots in Jaffna, and one of those who indefatigably fought Lee Kwan Yew's regime, had to sell his family home and an apartment, to pay his legal bills and damages. Mr. Tang Liang Hong, an opposition politician, faces an even a graver threat. The award that may be made by the High Court would be the highest ever made by any court anywhere in the world, which would amount to $14 million.

Naturally nothing is published or discussed about the corruption in Singapore. Politicians in power around the world love defamation laws. Naturally their gut instinct is to emulate the Singaporean model, not its miraculous development but its draconian laws which would keep them in power election after election. The people are muted and silenced,while some of their masters plunder the country and stash their lucre abroad. In order to achieve this without much difficulty it is necessary to muzzle the press, and impose sanctions by using defamation laws. When the PA government came into power, the Election manifesto read "For a secure prosperous society where human values reign DEVOID OF CORRUPTION OR TERROR" .

In order to achieve these ambitious goals the Election Manifesto pledged to the people a number of important promises. Now nearly after 3 _ years to the litany of broken promises I would like to add one promise the PA could have fulfilled without any financial constraints.

That is the promise to ensure the freedom of the media. "The PA, therefore, attaches the greatest importance to strengthening the media and providing a framework within which the media can function independently and without inhibition. This entails significant changes with regard to structures on ownership, policy objectives, the legislative instruments applicable, administrative policy in respect of such matters as facilities and the attitude of the government which are indispensable for a sound media policy.

Major constraints arising from provisions contained in the Constitution, the Public Security Ordinance, the Press Council Law, the official secrets Act and the Parliamentary (Powers and Privileges) Act, will be removed by amendment of this legislation. Journalists will no longer be punished by Committees of Parliament.

Action will be taken to broad base the ownership of the Associated Newspapers of Ceylon Ltd., in keeping with the intentions of Parliament, as set out in the original legislation." Broken promises are a common trait of all governments, but this government has used hitherto underused provisions of law, relating to criminal defamation, to punish editors. Most editors of National non government newspapers have been charged under this law.

The opposition to such a travesty of justice was growing, and media men objected to the ad hoc use of these anachronistic laws to muzzle the media. The then media minister Mr. Dharmasiri Senanayake appointed a committee headed by Mr. R. K. W. Goonesekara, and the committee in its wisdom recommended the repeal of the Criminal defamation law from the statue book. Mr. Mangala Samaraweera took over as the media minister, and the first major step he took was to repeal the act which gave powers to the parliament to punish journalists. He was complimented for the step he took in the correct direction.

It was assumed by many journalists that Mr. Samaraweera would do everything conceivable to repeal the unjust defamation laws. There were a number of national conferences held and media men with international repute participated, and extolled the justifiability of repealing the Criminal defamation laws, where the power to indict an offender rests solely with the Attorney General. It was believed that though the Attorney General continued to indict editors, the government and the Media Minister were seriously contemplating removing the offensive provisions from the Penal Code. This was one of the main recommendations of the committee appointed by this government.

The main opposition party, the UNP, like all previous parties in the opposition continued its agitation against the government striving to muzzle the media. The leader of the UNP unequivocally stated that it would implement a policy where all state media would be de controlled. But on the 7th of April, 1998 something very very strange happened.

Mr. G.L. Peiris, Minister of Justice introduced a Bill to amend the Evidence Ordinance. By this amendment he sought to introduce two new subsections to Section 35 and six new subsections to Section 41 of the Evidence Ordinance. Section 41 of the Evidence Ordinance is under the heading 'Judgements of Courts of Justice when relevant'.

The new sub-section 41a (2) and 41b and 41c discusses among other matters, a person being found guilty in a criminal case and when that matter is a relevant fact, the fact that person committed that offence would be relevant. Now this is all legal jargon. The illustration to Section 41a(2) may explain the importance of this section to the lay public.

If a person is found guilty in a motor traffic accident, the fact that he was found guilty if it is a relevant fact in a civil dispute, would be relevant to prove that the driver was guilty of negligence or failing to avoid an accident But the most important amendment to the Evidence Ordinance is contained in Section 41a which reads thus ''where in an action for defamation the question whether any person committed a criminal offence is a fact in issue, the judgement of any court in Sri Lanka recording a conviction of that person for that criminal offence, being a judgement against which no appeal has been preferred within the appealable period, or which has been finally affirmed in appeal, shall be relevant for the purpose of proving that such person committed such offence and shall be CONCLUSIVE PROOF OF THAT FACT'' .

One would seriously question the necessity of amending the Evidence Ordinance to make a conviction for defamation in a criminal Court a relevant fact for the purpose of proving that person committed an offence and further make it conclusive proof of that fact. This amendment clearly shows the intention of this Government towards the criminal defamation laws of this country. If the Government entertains any serious thoughts of revoking or repealing the criminal defamation laws or seriously thought of putting an end to the media hunt that it is carrying out against journalists, then it would not be necessary to amend the Evidence Ordinance to make a criminal conviction relevant in a civil case.

The intentions of the Government are obvious, that is to make a person convicted in a criminal defamation case it is trying to impose the judgement on the District Judge who would be hearing the civil case for damages. But the interpretation of Section 41a(1) would be eventually given by the highest Court of this land. Some would ridicule the amendment, stating that the Section would be applicable only in a case where action is instituted to claim damages from the editor and the publisher and one could not perceive how in a civil litigation the criminal offence or the conviction becomes a fact in issue.

Others might contend in a civil case for defamation the conviction in a criminal offence would never become a fact in issue. Some others might say that the period of prescription for defamation is two years and a civil case must be instituted within the two years of the publication of the alleged defamatory article and the criminal case based on the same article would take under the present circumstances more than four or five years for a conviction to be affirmed in appeal and therefore this Section would have absolutely no relevance in the present context. Be that as it may, the intention of the Government is very clear.

As much as it believes in using criminal defamation laws to indict editors and possibly to get convictions, they are now interested in encouraging the complainants who are mainly privileged people, whom the Attorney General thought are fit persons on whose complaints the editors are indicted, to file civil suits claiming massive damages and limiting jurisdiction of the District Courts to go into the question of civil defamation and make it easier for them to award huge compensation. This would naturally lead to the closure of free media institutions or the editors would be under severe restrictions from the owners of what they expose of the Government.

The muzzling of the editors would not come from extraneous personnel but from the management and the directors of newspaper companies. The ghost of Singaporean defamation laws are taking shape in this country. But it is also most unfortunate that the main opposition party, the UNP, did not call for a division when this bill was put to the vote.

Either the UNP was not aware of the pernicious intentions of the Government or they were deceived by the eloquence of the Minister and was unable to comprehend the real intentions of the Government.

One question the UNP would have posed is that if they are opposed to the use of criminal defamation laws, then what was the necessity for them not to oppose any amendment to the Evidence Ordinance which makes a conviction in a criminal defamation case relevant in a civil case. The parties opposed to criminal defamation laws should only strive to obtain a repeal of the Section, not to tinker with the existing laws. It is also surprising that the JVP and Tamil parties did not oppose these amendments. We do not know whether the Government forwarded a copy of the legislation to the Bar association for their consideration.

If this was done the Bar Association has either accepted these amendments or has been sleeping over them without discussing them and submitting their view to the Government.

Even the amendments which concerns the legitimacy of children is a matter that could be discussed seriously. In a case where the paternity of the child is concerned can the decisions of the Magistrates Court about the paternity of the child be taken into consideration in a partition action.

That is a matter that should have been discussed at length by the Law Committee of the Bar Association. Democracy survives in this country due to fearless and independent journalists and judiciary. Any Government in power whose intentions are not transparent would strive to muzzle the Press and subvert the judiciary.

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