Rajpal's Column

13th September 1998

So, progressive law not for Criminal Defamation?

By Rajpal Abeynayake

Doesn't the equitable administration of justice cover the area of criminal defamation? It's a short enough query, but there is a preamble to it.

Justice Minister GL Peiris told the media that "this government has made unprecedented strides in the area of administration of justice". Legislation has been passed at an unprecedented rate for proper administration of justice, and this legislation has been unopposed by the Opposition.

So the golden era of justice does not cover the area of criminal defamation? No less than five editors of national newspapers have been indicted in the tenure of this government on charges of criminal defamation, this columnist reminded the minister at the briefing. This has been done in spite of the fact that the government's own appointee to review media laws, R K W Goonesekera's recommendation that criminal defamation laws be removed from the statute books.

There is a good reason for R. K. W. Gunasekera's advice. The use of criminal defamation laws to contain the media and political opponents is an old ruse, now not resorted to in most civilised polities. Amnesty International has for example roundly condemned the use of these laws in Singapore for instance, which is one of the few (uncivilised of course ) polities which continue to use the laws of defamation against political opponents. For instance, this is what Judge Bentley, an Amnesty International observer, has to say about the use of criminal defamation laws against political opponents in Singapore. ( Reference: Judge Paul Bentley published in The Provincial Judges' Journal, Canada Autumn 1997 )

"For some years now, Amnesty International has been concerned that the government of Singapore is using defamation suits against political opponents to challenge their right to freely hold and peacefully express their convictions. The intention has been to inhibit the public activities of opposition politicians.

"Amnesty International had a particular concern about eleven libel suits brought by senior government politicians, against Worker's Party (the opposition) candidate Tang Liang Hong. The plaintiffs accused Tang of defaming Peoples' Action Party (government) leaders." Obviously, Amnesty International is worried that criminal defamation laws are being used against political opponents. The case in Sri Lanka appears even graver, however. Criminal defamation laws are being used, selectively, against editors of national newspapers, who are not even political opponents. There doesn't seem to be a shadow of doubt that defamation cases in Singapore are politically motivated against the opposition.

Judge Bentley continues that "the Jeyaretnam case raises a question as to the real reason why this defamation action (against Jeyaratnam) was brought: Was it a matter of injured feelings or damaged reputations, or simply a matter of political expediency? The Prime Minister has decided to appeal the decision, lending support to the belief that the latter consideration was the real motivation." That is the firm conclusion of Judge Bentley.

If the political motivation of defamation legislation is what we should be concerned about, we should see what Amnesty International (AI) has to say on that subject. AI has observed that the government's resorting to civil defamation suits in Singapore "has intimidated and deterred those Singaporeans who would dare to express dissenting views".

"This strategy," concludes Amnesty International, "may have a more insidious and dampening effect on free political speech in Singapore than their obviously condemnable Internal Security Act."

Contrast this situation with that of Sri Lanka.

The Sri Lankan government has been making use of Criminal (not just civil) defamation laws to indict journalists, not politicians. More than five indictments of this nature of editors, indicate that there is a pattern of such prosecutions.

In this climate, it would seem ludicrous to claim that there has been unprecedented gains in the equitable administration of justice during the tenure of this government. Even if justice had been done in other areas, it has been ignored in the area of legislation on criminal defamation, and the reasons for this lapse are best left unsaid .

Answering queries at the media briefing, Dr. Peiris said "existing laws will be used," inferring that Criminal Defamation was an "existing law'' in the statute books, and has therefore been used by state authorities ( ie Attorney General's Department ) by default. This argument is littered with holes. Not all laws in the statute books are used, merely because they prevail, and it was Dr. Peiris himself who acknowledged just last week that laws on homosexuality in our Penal Code are not being used because they are archaic.

Though the government has been keen to introduce groundbreaking legislation in other areas, the Criminal Defamation trap still remains in the law books. The Select Committee on media reform is "addressing the issue" but why wait for a Select Committee report, when in all other areas of the law, obnoxious legislation has been done away with at a rapid pace? One solitary government member was present at the Select committee sessions at which editors made representations on the issue of Criminal Defamation.

On top of this, the government has passed legislation to amend the Evidence Ordinance . The amendment ensures that a conviction in a Criminal Defamation suit, is adequate proof for a civil defamation ruling against a defendant. Now, the opposition has alleged that the government passed this piece of legislation when "the opposition was boycotting parliament."

If this is the case, what of the Justice Minister's claim that groundbreaking legislation pertaining to administration of justice was passed "with the full concurrence of the opposition?" — a claim he made at the media briefing.

Selectivity, the Editors Guild maintains, is the prevailing rule in the use of Criminal Defamation charges. When Anura Bandaranaike made a complaint of Criminal Defamation against Anuruddha Ratwatte, the police had "no time to investigate" the complaint. On the other hand, newspaper editors have been investigated for Criminal Defamation at the drop of a hat. We are not advocating that Criminal Defamation be used against others as well — not just editors. The civilised thing would be to do away with this obnoxious and antiquated piece of legislation altogether.

When the Argentine Minister of Justice tried to ram new Criminal Defamation laws through Congress, the Argentinean Congress threw the intended obnoxious legislation out, despite the Bill being ratified by the President. Justice Ministers may be alike in some parts of the world, but Argentineans would be thankful that the opposition was not boycotting congress sessions.

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