Chandrika Kumaratunga-the virtual complainant
Upali de Z. Gunawardena- the judge
As I start off writing this judgment, one thing that is uppermost in my mind is the requirement in Section 203 of the Criminal Procedure Code that the judge shall forthwith or within 10 days of the conclusion of the trial not only record a verdict but also give his reasons.
It is plain that it is humanly impossible to strictly comply with the requirements of that Section in a case of this bulk and magnitude but I shall be making a conscious endeavour to comply with the said requirement, at least, substantially by advancing the date, which was originally appointed for the delivery of the judgment if it is found possible to do so, as I go along writing it - although I am certain that the requirement is only directory as opposed to being mandatory. Lex non cogit impossibilia (Impossibility is a good reason for non performance of a duty).
The accused who is the editor of "The Sunday Times", a newspaper which is published as a Sunday Weekly, is indicted on 2 counts, first, with having committed the offence of defamation, an offence punishable under Section 480 of the Penal Code in that he had published or caused to be published an excerpt regarding Her Excellency the President in an article that appeared, in what is called the gossip column, in both editions, city and provincial, of the issue of Sunday Times of 19th February 1995 under the heading - "Anura: Sootin says courting days are here." The said excerpt, on which the indictment is based is in the following terms:- "Therefore, lets start at the top, about a party graced by none other than Her Excellency the President, Chandrika Kumaratunga. The occasion was the birthday of Liberal Party National List MP Asita Perera (Well Mudliyar Chanaka - how?) The place was Mr. Pereras 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 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 citizens epicurean tastes. But what of her estranged brother?" The said excerpt reproduced above relevant to the indictment that appeared in the provincial edition was marked in evidence as P3 (a) and the replica of which excerpt that appeared in the City edition was marked as P4 (a) and hereinafter will be referred to as such.
And on the 2nd count, on the same excerpt P3 (a), P4 (a) the accused-editior is indicted under Section 14 read with Section 15 of the Press Council Law with having committed an offence punishable under Section 15 of the said law in that a publication had been made of a matter, concerning Her Excellency the President which amounts to defamation under Section 479 of the Penal Code, which publication had been made in "The Sunday Times" of which the accused was the editor and still is.
Before I deal with the question as to whether the court can conscientiously say that the counts in the indictment have been proved against the accused or not, with that degree of proof required of the prosecution in a criminal case, which degree is summed up in the phrase that the indictment in a criminal case has to be proved beyond a reasonable doubt, I wish to consider by way of preface, so to speak, whether Her Excellency the President ever attended the birth day party hosted by Mr. Asita Perera as alleged in the excerpt P3 (a) or P4 (a) which is relevant to the indictment against the accused. Not that the truth of it would in the circumstances of this case, have in the least measure, diminished the criminal liability of the accused on either of the 2 counts if, in fact, the accused is otherwise liable or guilty on the same counts, but because the truth or otherwise of the relevant excerpt P3 (a) or P4 (a) in the gossip column would primarily assist one to get a clear perception of the factual background or the setting in which the accused-editor had been indicted; it will also have, I suppose, a marginal bearing on the question whether the press in question has conducted itself with that sense of responsibility that is expected of it and thereby earned for itself the privilege from disclosure of the identity of the writer of the excerpt, (or even its source) which is marked P3 (a) or P4 (a) that is, the excerpt said to be defamatory which had alleged that Her Excellency the President used the "rear entrance of the Hotel" to enter the private suite of Asita Perera in the Hotel Oberoi at the late hour of 12 midnight (that is, before the day was advanced by one hour) to attend the birthday party and left the party only in the early hours of the morning i.e., at 2.00 a.m. after spending (in Mr. Pereras suite) as alleged in the article "90 minutes in the heat of the silent night."
Furthermore in our law although the truth without the element of public benefit, in itself is no defence yet it may, perhaps, be relevant to the mitigation of sentence in case the accused is found guilty.
The evidence of the owner of the Press, Mr. Ranjith Wijewardena himself places the matter beyond controversy, that Her Excellency the President did not attend any such party as alleged in P3 (a) - P4 (a). To give the exact reference to Mr. Wijewardenas evidence which was in the following terms:
Giving further evidence the owner of the press in question had also stated as follows:
The gist of the evidence reproduced above given by the owner of the press in this regard, is that he considers the report on which the article marked P3 (a) - P4 (a) was biesed, false or fictitious and that it was revealed at the domestic inquiry held in that connection (by his press itself) that it was so, i.e., it was false. In other words, the owner of the press Mr. Wijewardena had categorically stated that the report that Her Excellency the President had attended Mr. Asita Pereras birthday party was false. In a manner of speaking we have got it from the horses mouth, in the circumstances, the most authoritative source.
In contradistinction to the evidence of the owner of the press, the evidence of the accused-editor, touching the question whether Her Excellency the President attended the birthday party of Mr. Asita Perera as alleged in P3 (a) - P4 (a), was as evasive as evasive could be, and designedly so, as would be evident from the excerpts of his evidence given below which are a random selection of his evidence. Excerpts of the evidence of the accused-editor quoted below would show how teeming with contradictions and irreconcilable positions his evidence in court was.
Q: "Do you know that the President had attended a party of Homecoming of the Leader of the Opposition?
A: I know for sure.
Q: Do you know for sure, as you said that the President attended the Homecoming of the Leader of the Opposition?
Q: Do you know for sure that the President attended the birthday party of Asita Perera as referred to in the article?
A: I do not know.
Q: That means you are not in position to say whether the President attended the birthday party of Asita Perera or not. Is it your position?
A: I cannot say for sure that the President attended the birthday of Asita Perera.
Q: Why do you say in one case that "You know for sure" and in the other case "you cannot say for sure"?
A: From my own inquiries.
Q: From your own inquiries you are not sure whether the President attended the birthday party of Asita Perera or not?
Then on 13.08.1996 - the accused-editor had said thus:
Q: "You are aware that the contents of the article in question are false?"
The accused had found the above question to be almost un-answerable, on his own showing, and his answer was interesting if not amusing and was in the following terms:
"A: That is very difficult for me to answer in one word. Can I answer it in this way. Personally I am not satisfied with the veracity of the story. However, I have been told that the story is correct."
Q: Who told you that this story is correct?
A: I do not want to disclose the name of that person.
It is fairly reasonable to conclude, in the context, that the accused-editor makes a pretence of speaking the truth when, in fact, he is not, by saying that the substance of the "story" that Her Excellency the President attended the birthday party of Mr. Asita Perera "is correct" and also by saying that he does not want to disclose the name of the person who told him so. It is only by giving such answers that one can render oneself immune from further cross-examination on such points and generally, being tight-lipped is a device to by-pass if not to extricate oneself from tight corners. The sequel of this judgment would show that there are other numerous instances in which the accused has claimed a vague privilege of sorts or something akin to it, against answering some pivotal questions and refused to answer them and the high water mark of such refusals was reached when, as though to crown all refusals (if in fact, the writer thereof was not he himself) the accused-editor, in his evidence, emphatically stated that he did not want to disclose even the sex of the writer of the relevant excerpt concerning Her Excellency the President. To quote from the evidence of the accused:
"Yes, I did not want to disclose the name of the writer of P3 (a).
Q: You know the name and you do not want to disclose it?
Q: Can you say whether the writer is a man or woman?
A: I cannot say whether it is a man or a woman."
If, in fact, as the accused-editor seems to suggest that the "story" on which the excerpt P3 (a) - P4 (a) relevant to the indictment or upon which the accused is indicted was true, it beats my understanding why the reporter who supplied the story for the news item P3 (a) - P4 (a) was dismissed from service as the owner of the press, Mr. Wijewardena had said. The owner of the press Mr. Wijewardena in his evidence had clearly said that report or the news item on which P3 (a) - P4 (a) was based was false and that the reporter who supplied that news item was sacked on that account.
However the evidence of the accused-editor touching the same point is somewhat different. To quote:
Q: The person who wrote this article is an employee of your press?
A: May I answer this way. The person who wrote is not an employee of the press and has left the press. The person who gave the story is still in service. The person who supplied the information is still there.
Q: The owner of the press has told that the person who gave the information has been dismissed?
A: He was dismissed from the employment but he supplies stories. He has been discontinued.
Perhaps, the accused was backward in readily coming out with the fact that the person who supplied the story had been dismissed for he (the reporter) wouldnt have been dismissed for supplying false stories if the story regarding the President on which P3 (a) - P4 (a) was based or composed was true. In the answer above reproduced the accused had un-reservedly said: the "person who gave the story is still in service. The person who supplied the information is still there" and it was only when the accused-editor was confronted with what the owner of the press had said viz. that the reporter in question who supplied the information relevant to P3 (a) - P4 (a) was dismissed that (the accused) too fell in line and conceded as follows: "He was dismissed from employment but he supplies stories. He had been discontinued."
The accused-editor on being further cross-examined had said:
Q: What was the reason?
A: We just stopped his services.
Q: Were you a party to the decision.
A: I was also a party to the decision.
Q: If you are satisfied that the contents of the article are not false why did you stop him from supplying information to the gossip column?
A: I decided to take that decision.
A: I took a decision.
Q: You cannot assign a reason for that?
A: Reason was following the inquiry and as I was not fully satisfied as to the veracity of the story. Though he insisted the story was correct I took a decision to stop him."
Not only Mr. Wijewardena but also Mr. Asita Perera (who hosted the party under the moon and stars - who are the hosts of heaven) had given absolutely in dentical evidence and what is remarkable was that neither of them was asked any question by the learned Presidents Counsel (who appeared for the accused) at least, for the sake of formality, challenging their evidence or directed to show that Her Excellency the President did in fact attend the birthday party as alleged in P3 (a) - P4 (a). In his treatise, viz. "A Practical Approach to Evidence" at page 444 Peter Murphy, Professor of Law South Texas College of Law having considered the effect of omission to cross-examine a witness on a material point had this to say: "Failure to cross-examine a witness who has given relevant evidence for the other side is held technically to amount to acceptance of the witnesses evidence-in-chief. It is, therefore, not open to a party to impugn in a closing speech or otherwise, the unchallenged evidence of a witness called by his opponent or even to seek to explain to the tribunal of fact the reason for the failure to cross-examine......... Accordingly it is counsels duty, in every case: (a) to challenge every part of a witnesss evidence which runs contrary to his own instructions; (b) to put to the witness, in terms, any allegation against him which must be made in the proper conduct of the defence; (c) to put the witness counsels own case, in so far the witness is apparently able to assist with relevant matters or would be so able, given the truth of the counsels case."
To proceed with the quotation from Peter Murphy:
"The second consequence of failure to cross-examine is a tactical one but no less important for that. Where a partys case" had not been put to witnesses called for the other side, who might reasonably have been expected to be able to deal with it that party himself will probably be asked in cross-examination why he is giving evidence about matters which were never put in cross-examination on his behalf. The implication of the question is that the party is fabricating evidence in the witness-box, because if he has ever mentioned the matters in question to his legal advisers, then they would have been put on his behalf at the proper time."
The point enunciated above is one much beloved of prosecuting counsel in criminal cases although no such point was made in this case in this regard. People err inadvertently, that is quite understandable and even pardonable, but what is morally contemptible is the vain attempt, feeble though it be, on the part of a man of the accuseds stature to seek to knowingly perpetuate a falsehood that Her Excellency the President, attended Mr. Asita Pereras party and conducted herself in the manner described in P3 (a) - P4 (a), for it shows, above all lack of delicacy and consideration for feelings of others presence of such qualities being the token of excellence of gentility.
To revert to the indictment, the question of proof of the above counts will necessarily have to be considered separately - not only because the constituent elements of the two offences are somewhat different but also because the incidence of the burden of proof in relation to the two offences is also therefore, necessarily different.
To consider the counts in the order in which they are set out in the indictment:
To prove the 1st count, three basic elements have to be proved beyond reasonable doubt.
(a) The excerpt or the words i.e., P3 (a) - P4 (a), were defamatory of Her Excellency the President.
(b) That it was the accused-editor who published the relevant excerpt or it was he who caused its publication.
(c) That the accused-editor intended to defame Her Excellency the President or knew or had reason to believe that the relevant excerpt concerning Her Excellency the President will harm her reputation.
The question whether the excerpt P3 (a) - P4 (a) is defamatory of Her Excellency the President will be considered - rather the reasons for holding that P3 (a) - P4 (a) is defamatory will be adduced in the context of the consideration of the 2nd count although ordinarily - according to usage it is the first point that falls to be considered in the sense, that it is considered as a preliminary matter either holding the words to be defamatory or otherwise and giving reasons in that regard for if the imputation is not likely to harm the reputation, no prosecution would lie at all. But in this context itself it has to be stated, in no uncertain terms, that the words in question are defamatory of Her Excellency the President and I only defer the statement of reasons for that finding for in relation to count No. 02 as well the question whether the words in question "amount to defamation within the meaning of Section 479 of the Penal Code" has to be considered for accused-editor will automatically "be deemed to be guilty" of an offence in terms of Section 14 read with Section 15 of Press Council Law only if the words "amount to defamation" within the meaning of the relevant Section of the Penal Code and I feel it would be appropriate to state the reasons for holding the relevant excerpt to be defamatory in the context of the 2nd count.
Once the words are held to reflect on the character of Her Excellency the President, as I do, the person publishing the defamatory statement is guilty of having defamed Her Excellency the President whatever his intention may have been, for, as I pointed out in my previous order dated 23.05.1996 dealing with the submission of "no case to answer" the law presumes that man intends the natural and probable consequences of his act or rather the words in this context. As had been decided in OBrien Vs. Clement - a case decided as far back as 1846, referred to in "The Law of Crimes" - Ratanlal and Thakore (18th edition) - page 1248: "Everything printed or written, which reflects on the character of another and is published without lawful justification or excuse, is a libel whatever the intention may have been." Unlike in a civil suit, in which the court is confined more or less to the pleadings, in a criminal prosecution such as this, before a conviction is entered against the accused, it has always to be seen whether the proved or admitted facts bring the case within an exception, which takes it out of the offence defined, and as a general rule if not an inflexible one, the burden of proving any one of the 10 exceptions or defences (to the offence of defamation) set out in the Penal Code being on the accused. The accused had not invoked anyone of the 10 defences or exceptions contemplated in the Penal Code - his argument being so far as I can see, basically twofold: (a) That the words are harmless and in no way reflect on the character of Her Excellency the President and that (b) the accused, in any event, is not the writer of the relevant excerpt P3 (a) - P4 (a) although he had sedulously guarded the identity of the writer as a cherished secret. In addition to the said twofold basic argument the defence had raised several other points in the course of oral submissions - a summary of which sumbissions are given in the written sumbissions dated 28.02.1997- 04.04.1997 and 04.06.1997 and they too will be dealt with in due course. But the submissions dated 04.06.1997 will be considered in the context of count No. 02 as the said submissions relate mainly if not exclusively to count No. 02 - except that it had been pointed out therein that there was an "inconsistency of facts alleged in the charges." The accused seems to say that he had nothing to do with the publication of P3 (a) - P4 (a) the relevant defamatory excerpt. However, it goes without saying that the burden of proving, beyond reasonable doubt, every ingredient of the offences of defamation with which the accused is indicted on the 1st count rests with the prosecution. Next, to consider the other element, designated (b) above, of the offence, of defamation that is, whether the accused can be held to have published the relevant imputation or caused its publication:-
The fact that the relevant excerpt, hereinafter referred to as a P3 (a) - P4 (a) alleged to be defamatory had been published by the accused or that he had caused its publication could be held to be proved beyond a reasonable doubt, alternatively, if need be, on either of the 2 following grounds:-
(i) that the accused-editor himself was the writer of the relevant excerpt P3 (a) - P4 (a). If, in fact, he was the writer of the relevant excerpt he couldnt have written it with any intention other than that of publishing what he wrote - he being the editor of the newspaper in question.
(ii) that the accused-editor had taken or played such an overt part in the publication of the article embodying the excerpt in question, so such so, that he must be taken, in any event, to have so identified himself with the relevant publication as to constitute himself a consenting party to the publication. Of course, it goes without saying that it must necessarily be a question of fact and degree whether the accused-editor by his conduct, by his activity if not action is to be taken to have so identified himself with the publication P3 (a) - P4 (a) or of entire feature article of which P3 (a) - P4 (a) is only an excerpt, as to constitute himself a consenting party to the publication thereof.
To consider the ground designated (i) above, that is, that the accused-editor himself was the writer of the relevant excerpt, a singular feature of this case is that the accused-editor deliberately refused to respond to any question asked of him in regard to the identity of the writer of P3 (a) - P4 (a).
The basis on which the accused sought to be excused or privileged from disclosure of the name or identity of the writer of the excerpt relevant to the indictment is not all that clear and is certainly vague for it is apparent that it is something unknown or not recognised by the law, for when on being questioned as to who the writer of P3 (a) - P4 (a) was, the accused stated as follows:
"I would like to refrain from disclosing the name of the writer. It goes to the root of the press freedom" or when he (the accused) said in another context, also in the course of his evidence thus:
"Q: Article P3 (a) you said that there is a writer?
Q: You said you did not want to disclose the name?
A: Yes, I claim privilege."
He (the accused) seemed to be saying or to be under the belief that it was in the public interest not to disclose the identity of the writer of the relevant excerpt alleged to be defamatory, or that the disclosure of the name or the identity of the writer would be in breach of some ethical or social value. The law which clears up this point is to be found in Section 32 (1), (2) and (3) of the Press Council Law which reads thus:
32 (1): Nothing in this law shall be deemed to require any newspaper....... editor to disclose the source of information relating to any item of news published in any newspaper.
32 (2) States thus: It shall be lawful for........... editor........... to disclose the source of information by way of defence at any inquiry under Section 9 or any prosecution under Section 16 (5) of the Press Council Law. Of course, this sub-section, that is, Section 32 (2) of the Press Council Law has some degree of relevance even to this case, in that it states even, in proceedings under the Provisions of the Press Council Law it is open to the editor, if he chooses to do so, to disclose the source of information by way of defence.
32 (3) States that: The provisions sub-section (1) shall have no application to any other law or to any proceedings in relation to any newspaper, proprietor, printer, publisher, editor or journalist under the provisions of any other law. As this sub-section that is Section 32 (3) makes it clear that the provisions of Section 32 (1) of the Press Council Law does not apply in the case of any proceedings under the provisions of any law other than the Press Council Law. The privilege of non-disclosuce of the sourse of information will not be available to the accused in proceedings on the first count which is laid under the Section 479 of the Penal Code (and not under the Press Council Law) because it is that section, viz. 32 (1) that creates or provides for the said privilege. Yet, since the 2nd count referred above had been framed under Section 14 read with Section 15 of the Press Council Law - the better view seems to be that the accused-editor cannot be required to disclose the source of information on which P3 (a) - P4 (a) was based or written since under the 2nd count the proceedings may be said to fall under the Press Council Law.
Anyhow, it will be seen from the provisions of Section 32 of the Press Council Law reproduced above, that the law protects from disclosure (even assuming for the sake of argument that the protection applies to the source of information even in the circumstances of this case) not to the name or identity of the writer but the source from which he (the writer) derived it. It is to be observed that according to the evidence of the accused-editor reproduced above - the reporter who supplied the material and the writer who composed the excerpt or the article P3 (a) - P4 (a) on that material are two different and distinct persons - so that disclosure of the name of the writer would not result in the disclosure of the source of information.
Undoubtedly, there is a public interest in a democratic society having access to information. With respect to newspapers the rule against disclosure of the source is founded on public policy and that policy is the free flow of information to the newspapers and they should not under normal circumstances be forced to disclose their sources of information for otherwise much of the information would cease to flow to the press. The accused - editor, as remarked above, had NOT been asked about the source of information. He had only been questioned as to who wrote the relevant excerpt. P3 (a) - P4 (a) concerning Her Excellency the President. But the circumstances of this case are such that the accused-editor would not have been protected from disclosure or couldnt have claimed any such immunity or exemption even if he had been asked to disclose the source of the information, as would be evident from the following illuminating passage from a judgment of Lord Denning: ".............. the newspapers should not be compelled to disclose their sources of information. Nevertheless, this principle is not absolute. The journalist has no privilege by which he can claim - as of right - to refuse to disclose the name. There may be exceptional cases in which, on balancing the various interests, the court decides that the name should be disclosed - such as in Garland Vs. Torpe 259 F, 2d 545 in the United States and Attorney-General Vs. Mulhalland (1963) 2 Q.B. 477 here. It seems to me that the rule - by which a newspaper should not be compelled to disclose its source of information - is granted to a newspaper on condition that it acts with a due sense of responsibility. In this context, the fact that the owner of the press Mr. Wijewardena, himself un- conditionally admitted that the report, regarding Her Excellency the President attending the Birthday party of Mr. Asita Perera was false is germane although the accused-editor, as explained above, sought to confuse the issue and it was pretty obvious that he too knew in the very marrow of his bones, so to speak, that the Her Excellency the President had not attended any such party - let alone entered by the back-door to screen herself - because he himself, that is, the editor himself, had held an inquiry (according to his own evidence in court) and had suspended, as a disciplinary measure, the reporter in question (whose name the accused refused to disclose) from thereafter supplying information to the gossip column which was the column in which this excerpt P3 (a) - P4 (a) regarding Her Excellency the President had appeared. It is to be recalled as had been pointed out above, the owner of the press (Mr. Wijewardena) had stated in evidence that the reporter who supplied the relevant information was dismissed altogether from service. To quote from Mr. Wijewardenas evidence:
To proceed with the quotation from Lord Denning: "In order to be deserving of freedom, the press must show itself worthy of it, a free press must be a responsible press..... It must not abuse its power. If a newspaper should act irresponsibly then it forfeits its claim to protect its sources of information. Let me give some examples. If a newspaper gets hold of an untrustworthy informant - and uses his information unfairly to the detriment of innocent people - than it should not be at liberty to conceal his identity......"- which is exactly what had happened in the case in hand (under consideration by me).
To continue the quotation: "They have behaved so badly that they have forfeited the protection which the law normally gives to newspapers..... The protection is given on condition that they do not abuse their power. Here Granada have abused it. They should be compelled to discover the source of their information......." Of course, in England the position seems to be governed by common law principles unlike in Sri Lanka where the statute governs the matter. But English decisions have undoubtedly a persuasive value, to say the least.
What is stated above would serve to show that the accused-editor could not have refused to disclose the identity of even the writer stating (to use the words of the accused himself) that to do so "would go to the roots of press freedom." It is ironical and even self-defeating for the accused editor to claim privilege or immunity from disclosure of the name or identity of the writer - a piece of evidence - which is potentially favourable to him overwhemingly if it be true that the accused-editor himself was not the writer, but somebody else was, as he had sought to make out - for it would have repelled the strong feeling, if not the belief, he (the accused-editor) was the writer, as firmly suggested by the Prosecution - a suggestion which is wholly vindicated by the attendent points of interest peculiar to this case and which are referred to in the course of this judgment. Although, in so many words, not raised as an argument by the defence, I have yet taken care to examine the question whether the accused could have refused to answer the question as to the identity of the writer even on the basis of self-incrimination for I am wise enough by now to know that it is best to consider any question, for that matter, in all its aspects and from all angles for nowadays the tendency seems to be to leave no stone unturned in the quest for arguments whether there is merit in them or not. If the Bench has to decide un-aided, rather amidst obstructions, I wonder whether the Bar really has any raison detre. I am afraid the privilege against self-incrimination cannot be invoked for as Sir Robert Megary V.C. had stated in the case of British Steel vs. Granada Television (1981) appeal cases page 1106: "........ the privilege against self-incrimination can be invoked only by someone who does so in good faith for his own protection and not for some ulterior purpose: it is a privilege against self-incrimination and not a privilege against incrimination of others....." Thus in Reg. vs. Armagh Justices (1883) 181 L.T.R. 2 - a woman who refused to testify that a publican had sold her a naggin of whisky out of hours was held not to have been entitled to do so, the reason, I think, being that her refusal was made to protect not herself but the publican. From the above comparative analysis or discussion one fact that emerges clearly is this, viz, that neither under the relevant provisions of the Press Council Law nor under the English Law would the accused-editor have been privileged or protected from disclosure of the identity of the writer when the writer is, as admitted by the accused himself - distinct from the source (of information) - for the accused, had stated they are two different and distinct persons - source of information being the reporter. On 13.08.1996 the accused had stated thus:
Q: Who supplied the information to the writer? Is he a reporter?
A: He is a reporter.
On 27.08.1996 the accused said: "It was written by the writer on the information given by the reporter." On the same date the accused had said: "News item was provided by a reporter."
No one wanted to know the name of the reporter who may perhaps he said to be the source of information. It is doubtful whether, in the circumstances of this case, whether even the source of information could have been withheld - although that aspect does not arise for consideration to reach a decision in this case. It is to be recalled that the accused-editors position in court was that it was somebody else and not he who wrote the piece or the excerpt in question but, as stated by him, since he didnt want to embarass or "let down" the person who wrote the relevant exerpt P3 (a) - P4(a), he (the accused) did not wish to disclose the identity. To quote from the accuseds evidence given in this regard on 10th October 1996:
Q: Is it your position disclosing the name of the person who wrote the article P3 (a) goes to the root of press freedom?
A: I firmly believe that it goes to the root of press freedom."
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