5th March 2000

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President Vs The Sunday Times Appeal

Counsel stresses absence of malice

The trial Judge had not considered any of the editorials written by The Sunday Times complementing the President, nor the editor's evidence of his acquaintance with her, indicating the absence of malice, senior counsel Tilak Marapana told the Court of Appeal when the appeal by The Sunday Times editor came up for hearing.

"The learned High Court Judge had conveniently ignored all this evidence while dealing with the intention to harm, and malice, two vital ingredients in criminal law in Sri Lanka.

"Several editorials for which the editor was responsible had been produced during the trial showing there was no ill-will towards the President. It has been the editor's uncontradicted evidence that his newspaper praised political leaders and criticised those from whatever government according to its merits," Mr. Marapana said in the editor's appeal against his conviction by the high court on charges of criminally defaming President Kumaratunga.

"The newspaper had been critical of the former government as well. The editor's evidence that he has met the President socially, and for discussions, had been un-contradicted.

It was submitted that the intention to cause harm assume the greater significance in this case because the words of the passage do not have a natural and an inevitable conclusion of lowering the estimation of the complainant. To reach a defamatory meaning one is compelled to strain. The judge should therefore have examined the matter more carefully and not merely rested by stating that the intention to defame can be ascertained from the words in the passage itself . The learned trial Judge should have examined the accused evidence about his having written complimentary articles, an editorial about the President and also the proprietors's friendship with Her Excellency. These have not been referred to at all in the judgment.

Mr. Marapana said the learned trial Judge had come to an erroneous conclusion that the editor was the writer of the gossip column by using a statement made by the editor to the CID as substantive evidence.

He said the trial Judge himself was aware of this flaw, but went on to rely on what he states is a contradiction in that statement, to draw the conclusion he has come to.

"The trial Judge has taken a line from that CID statement where the editor states the gossip columnist is one person and coupled it with his evidence that he wrote one item consisting of three paragraphs and come to the conclusion that therefore it is the editor who wrote the entire column which had fourteen separate items.

"The trial Judge has also used the phrase 'in the heat of the night' which appeared in an editorial then referred to a similar phrase, 'the heat of the silent night', that appeared in the gossip column, and come to the irresistible conclusion that because as he says, only the editor writes the editorial, he is the writer of the gossip column as well.

"It is well known in the newspaper world that there are people known as editorial writers and this was the uncontradicted evidence of the accused editor.

"It was submitted that facts relied upon items of circumstantial evidence should first be established beyond reasonable doubt. It was only then that the totality of such established facts should be considered to examine whether or not and irresistible conclusion would be drawn on the totality of such facts, Mr. Marapana submitted that instead the learned trial Judge has taken conjecture upon conjecture to reach his conclusion that the accused editor himself was the writer of the alleged defamatory passage appearing in the gossip column.

"The trial Judge ventured to come to that conclusion when the Police was unable and not interested to find who the writer was. The prosecution was also doubtful as to who the writer was both when the indictment was served and even at the conclusion of the trial.

"That was why the indictment had alternative counts - count 1 under the Penal Code alleging that the Editor was the writer and an alternative, count 2 under the Press Council Law alleging that someone else was the writer, and the editor was vicariously liable."

Mr. Marapana said the CID officer's evidence was that having come armed with a search warrant they were interested only in the page proof and the printing plates to prove publication. They had not looked for the manuscript of the alleged defamatory article nor conducted any investigations at all to ascertain who the writer was. They had believed they could get that evidence from the editor and when they failed to get this evidence the prosecution took the easyway out by prosecuting the editor.

"The editor had refused to divulge the name of the writer because the writer was also a source of that information, and he wished to protect all sources.

"The editor protected his sources and his colleagues by refusing to divulge any names, and the trial Judge never compelled him to divulge any names.

"Even if the trial Judge compelled the editor to divulge the name of the writer, the editor would not have done so because that goes against journalistic ethics."

There was a Code of Ethics gazetted under the very Press Council Law that protected sources and Mr. Marapana invited the court to take judicial note of this.

"When the editor had refused to divulge the name of the writer the Judge could have compelled him to divulge the name of the writer and proceeded to punish him for contempt of court. But merely because he refused to divulge the name it was unreasonable to conclude that the editor himself was the writer."

Mr. Marapana said criminal liability placed a much higher degree of proof than civil liability. "Is this a finding beyond reasonable doubt," he asked and submitted that the trial Judge had failed to conclude beyond reasonable doubt that the editor wrote the allegedly defamatory article.

Mr. Marapana then referred to the indictment where the editor had been charged on alternate counts. He submitted that this indictment should never have been presented because the prosecution itself had a doubt as to who the writer was by including two alternative charges.

It was in this doubtful background that the trial was commenced, and concluded. The indictment was not amended as it could have been done, at any stage of the trial and the learned trial Judge convicted the accused on both counts.

Arguments will continue on March 9, before Justices Hector Yapa and P. H. S. Kulathillake.

Beach grabbers deny freedom to leisure seekers

By Tania Fernando

The public are being denied free movement on the beach due to the numerous restaurants that have been coming up on the beach in the recent past. Most restaurant owners are on the lookout to attract locals by arranging barbecues, private parties, etc. on the beach.

While most of us seek some R and R (rest and relaxation) on the beach, it has turned out to be a money spinner for those with business acumen. With less tourists coming they have now turned to the locals who frequent the beach.

Mt. Lavinia beach, a popular spot, has many little restaurants. While they claim to be paying a rental for the beach, the garbage that collects due to their activities is not being cleared for days. According to Nihal, owner of the restaurant Jo-Jo's in Mt. Lavinia, he pays a rental to the Dehiwela-Mt. Lavinia Municipal Council (DMMC) for the renting of beach space.

"We do not pay for the chairs that we put out on the beach. There is no need for that, since we pay a tax and rental to the DMMC", he said.

But according to Mayor Jayaratne Perera there is no rental being charged and neither are they responsible for the beach since it comes under the jurisdiction of the Coast Conservation Department (CCD).

While the genuine restaurant owners are liable to pay assessment tax, like any other registered business, the problem with these seems to be that they are not registered, thus not having an assessment number.

If they were to obtain assessment numbers, the Municipal Council has the authority to decline their application in terms of Section 14 of the Coast Conservation Act No. 57 of 1981, which states that no person is permitted to engage in any development activity other than a prescribed development activity within the coastal zone, except with a permit from the Coast Conservation Department (CCD).

The CCD's authority extends 300 metres landward from high water line and a limit of 2 km seawards from the low water line, which means the inclusion of the restaurants, cabanas etc.

According to R A D B Samaranayake, Manager Coastal Resources Development, it is not possible to monitor all structures that come up on the coast due to the shortage of manpower and funds to conduct search operations of this nature.

"We have made arrangements for coast guards to watch out for unlawful structures on the beach and inform us. We also conduct educational seminars every month at divisional secretariats" he said.

Any person who puts up any structure without a permit from the CCD or the Divisional Secretary would be subject to legal action and result in demolition of the structure. The owner has three days within which he can make an appeal to the Secretary of the Ministry.

He further said there is no legal provision to demolish structures built before 1983 because the Act came into being only after that. But if any alternations are being made without prior permission they have a right to issue a demolition order.

Mayor of Negombo Ananda Munasinghe says that in the event of an unauthorized building coming up on the coast of Negombo, the Municipal Council on receipt of the information informs the party concerned and issues an assessment number and imposes a fine of Rs. 500 per day for the buildings.

"At present there are unauthorized buildings on the coast, but we are soft peddling it at the moment", he said.

Deputy Commissioner Chandrasiri of the Galle Municipal Council also said that they are in charge of the coastal area, and are authorized to demolish any illicit structures that come up in their area.

The fishermen living on the beaches have been relocated in many instances, but they sell the property and come back to the beach. Whilst it is convenient for them to live on the beach, it also helps them with other activities that take place on the beach.

No, no, no, says PSD chief

Presidential Security Division Director Nihal Karunaratna has strongly denied allegations against his department and said that he continued to act under the instructions of the IGP as a police officer although he serves the President.

ASP Karunaratna in an interview with the state run 'Silumina' newspaper denied the allegations that the PSD was involved in the Wayamba election malpractices, or in targeting journalists during the attack on the UNP demonstration or in contract attacks on film stars.

The PSD chief said his duty was to protect the President at a time when terrorists could break into Temple Trees, posing off as demonstrators. Thus journalists were not specifically targeted on July 15.

He said none of his officials had grabbed the cameras of the photo-journalists or was in civvies when they came to disperse the UNP demonstrators. ASP Karunaratna denied the allegation that he had recently intervened to rescue one of the PSD men allegedly involved with the underworld.

Recruitment drive extended

By Hiranthi Fernando

The recruitment drive of the Army has been extended until March 20. So far, 1176 new recruits have been enlisted through the current recruitment drive which commenced on February 1. This figure falls far short of the target.

The Army, which planned to augment its ranks by 15,000 men during the year, hoped to enlist a third of that number during the current recruitment programme.

The amnesty for deserters too has been extended till today.

Up to February 27, which was the closing date of the amnesty, 3019 deserters had reported.


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