It was the submission of the learned President’s counsel that the language or the wording or the ground on which count No. 02 is framed specifically excludes the fact that the accused-editor was the maker and/or the publisher of the relevant excerpt. The position of the learned President’s counsel was that against the background or the manner in which or the ground on which count No. 02 is framed - the fact that “someone other than the accused” was the maker and publisher has become a constituent element of the offence of which the accused is indicted on the said count i.e. count No. 02. In other words, the learned President’s counsel for the defence carried his submission to the length of saying that unless it was proved that somebody else other than the accused was the maker and/or publisher of the relevant excerpt the court was precluded from convicting the accused on count No. 02.
To quote the very submission of the learned President’s counsel (in regard to count No. 02) in his own words, which were as follows:- “This charge as presently drafted unquestionably contains an essential ingredient that someone other than the accused has made or published the article and thereby committed an offence under section 15 of the Press Council Law”. The above argument of the learned President’s counsel was that the fact viz. that it was “someone other than the accused who made or published the relevant article” is a constituent element of the offence in respect of which count No.02 is laid. He further argued that that being so i.e., the fact that “someone other than the accused has made or published the article” - being as the defence counsel argued, “an essential ingredient of count No.02” not only must it be proved that “someone other than the accused” made or published the relevant article but that conviction of that other person is a condition - precedent to the conviction of the accused - editor in this case. It is, indeed, a startling argument.
The above argument has to be rejected out of hand for the following reasons.
(a) Nowhere, as explained above, has it been alleged in count No. 02 that “someone other than the accused” was the maker and publisher of the relevant article. (b) Clearly in terms of sections 14 and 15 of the Press Council Law if a statement is published by a person, whoever he may be, say “X” - the editor “Y” is guilty of an offence vicariously so to speak, by virtue of the fact that he (“Y”) happens to be the editor. If “Y” is guilty of an offence when somebody else had made and published the article in the newspaper of which he “Y” is the editor, how can it ever be said that “Y” has to be acquitted if “Y” himself has (personally) committed the self-same offence. It is something like saying that “Y” would be guilty of murder if “X” had committed the murder ‘but not when “Y” himself had done it. At best, it is an odiously technical argument.
Assuming for the sake of argument that it was “someone other than the accused” - (the words within the quotation marks being those of the learned defence counsel) - who was responsible for the making and publication of the relevant article, still there is no need for the conviction of that other person as there is no legal requirement that that person who was responsible for the publication (in consequence of which the offence is committed under Section 15 of the Press Council Law) ought to be convicted, (as the defence counsel argued), as a condition - precedent to the conviction of the accused in his capacity as the editor. If the defence argument - to quote the very words in which that argument is couched: “A prosecution under section 14 should be preceded by a conviction under section 15 of the Press Council Law” - is accepted as valid, an editor can never be convicted under the relevant sections of the Press Council Law in cases where the person who published or caused the publication to be made dies before he i.e. the person who caused the publication, is convicted or cannot be traced or is unknown, or where the editor himself is the person who has committed the offence under section 15 by himself making the publication - for the defence argument as pointed out above, was this viz. “A prosecution under section 14 should be preceded by a conviction under section 15 of the Press Council Law.” In order to succeed in a prosecution, (in terms of section 14 and 15 of the Press Council Law) arising out of a publication of a statement amounting to defamation within the meaning of section 479 of the Penal Code all that has to be proved is that that statement ‘amounts to defamation within the meaning of section 479 of the Penal Code”. When the prosecution establishes that, if the accused-editor fails to “prove” that offence was “committed without his knowledge” the editor, in the circumstances of this case, has invariably to be convicted.
It had also been argued by the defence to quote the submission: “ The accused who called upon for his defence also on the basis of the charge of the publication of the alleged defamatory article in the provincial edition. (Para. 12 - submissions dated 04.06.1997)
Nowhere was it stated in the indictment that the relevant article was published in the provincial edition only. The indictment states that the relevant article was published in the issue of “Sunday Times” of the l9th of February 1995 - without limiting the indictment to any one edition. The indictment stands un-amended to date. It is not correct to state, that the case that the accused had to meet was that the relevant article was published only in the provincial edition. The defence had conceded at paragraph 12 of the written submissions filed on O4.06.97 that the indictment had not been limited to any one particular edition of the issue of Sunday Times of the relevant date. The case that the accused had to meet was the case that was set out in the indictment which stated that a disparaging statement regarding Her Excellency had been published in the issue of Sunday Times of 19.02.1995. Mr. Wijewardena, the owner of the Press had stated, as a witness for the prosecution that the article was published in the Sunday Times and had not restricted the said publication to provincial edition of the Sunday Times.
The accused-editor himself had stated in his evidence that the relevant article was published both in the city and provincial editions. And the city edition was marked when, in fact, the accused stated that he “sanctioned” the publication in the city edition. In coming to a decision as to whether the indictment is proved as against the accused the court is entitled and, in fact, is bound to consider not only the evidence of the prosecution but also the evidence of the accused and such other evidence that had been adduced by the defence. Indictment encompasses both editions. And when the accused belatedly stated in evidence, as an afterthought, that that he sanctioned only the publication in the city edition he, at any rate, ought to be convicted on his own admission. Of course, the reasoned finding of the court as stated above in this judgment is that the accused sanctioned the publication of the relevant article in both editions.
The sum up, the accused is convicted on the 1st count, i.e. of the offence of defamation within the meaning of section 479 of the Penal Code on the (a) ground that he is the writer or composer of the relevant excerpt. Thus, he is the maker of it and he (the accused) would not have composed the relevant article or the excerpt except for the purpose of publication. It is to observed that there is a reasoned finding above that the relevant excerpt has a libelous significance. (b) Alternatively, he ought to be convicted, even assuming for the purpose of argument, that he (the accused-editor) wasn’t the writer - because as stated at page 20 hereof the accused-editor by his conduct had taken or played such an overt part in the publication of the relevant article so as to constitute himself a consenting party to the publication thereof which article, in fact, would not have been published had the accused-editor not sanctioned the publication. In short, the accused had caused the publication of the relevant article to be made in the “Sunday Times”.
Since the accused, who had complete control (over the selection of material to be published) by virtue of the fact that he was the editor, had not removed or prevented the publication of the relevant article the publication of the article must be taken to have been made with his approval or imprimatur. As had been explained at pages 147 and 148 (above), failure on the part of a person (who had the power to remove defamatory material constitutes publication. The accused being the editor undeniably had full control over the selection of material to be published in his newspaper and his failure or deliberate omission, to remove the defamatory article, amounts to publication thereof. But, in this case, the conduct of the accused in relation to the relevant article amounts to more than a mere omission for he (the accused) had clearly sanctioned or approved the publication thereof.
The accused-editor has to be automatically convicted on the 2nd count when he is convicted on count No.O1 by virtue of the inexorable operation of the law, so to say, for section 15 of the Press Council Law states that, as pointed out above, every person who publishes any “statement or matter.....which will amount to defamation within the meaning of section 479 of the Penal Code shall be guilty of an offence.”
And under Section 15 of the Press Council Law when such an offence as described above is committed through the means of a newspaper the editor etc., “shall be deemed to be guilty unless the editor proves that the offence was committed “without his knowledge”. The editor, as explained above, failed to prove that defence - that being the only defence that he pleaded in connection with count No.02. It is true that the accused-editor had been alternatively indicted, but needlessly. In any event the accused-editor is not prejudiced in any way by being convicted on both counts, as he ought to be, for he defended himself on both counts. It is to be emphasized that once an editor is guilty of the offence of defamation within the meaning of section 479 of the Penal Code he is automatically guilty of an offence in terms of section 14 and 15 of the Press Council Law if the offence of defamation had been committed by means of the newspaper (of which he is the editor).
And even assuming for the sake of argument that the accused had been acquitted on count No.01, yet he (the accused) has to be convicted on count No.02 laid under the Press Council Law - for the “statement or matter” published in the columns of the newspaper of which he was and still is, the editor amounts to defamation of the President and the accused had failed to “prove’ (as explained above) the defence that he (the accused-editor) sought to prove i.e. that the relevant defamatory excerpt was published “without his knowledge. “Even assuming but not conceding that the defamatory article was published in the provincial edition without the accused-editor’s knowledge - still he (the accused-editor) has to be convicted on both counts on his own admission that he “sanctioned” the publication of the relevant excerpt in the city edition. It is to be emphasized that the publication of a defamatory statement or matter to just one solitary person suffices to constitute the offence of defamation.
As a final note I ought to add that one must not forget that all- important answer which the accused-editor gave on 03.07.1996 which was as follows:
“Q:- Is it your position that this article alleged to be defamatory and in respect of which you have been indicted was published without your knowledge?
A : I saw the article.
Q : When did you see the article?
A : Just before the publication.”
The above answer is almost final proof that the relevant excerpt was published with accused-editor’s knowledge in both editions of the Sunday Times of 19.02.1995.
It has to be explained that although as stated above at page 144 that in the Indian Law there’s the presumptive liability of the editor - that circumstances, i.e. presumptive liability had not been taken into consideration in reaching the finding, in this case that the accused-editor is the composer or the writer of the relevant excerpt or the article concerning Her Excellency the President although the fact that the accused is the editor may have, to say the least, some marginal evidentiary value on the question as to whether the accused-editor himself is the writer or the composer of the relevant excerpt or the article. It is to be observed that in holding the accused-editor to be the writer of the relevant excerpt I have relied solely on the cumulative effect of the 5 points dealt with from pages 41 to 145 - coupled with the refusal of the accused to disclose the identity of the writer - and on no other circumstance. In the result, I do hereby find the accused guilty on both counts and convict him of both (counts 01 and 02 ) and the question of the sentence will be decided on after hearing the learned counsel - particularly the learned defence counsel - if he chooses to plead in mitigation.
U. de Z. Gunawardena,
High Court Judge of the Western Province -
Colombo.
01.07.1997.
The defence counsel Mr. Ponnambalam impressed upon the court that he would not be making any plea in mitigation of the sentence. But he, on being questioned by the court, said that he would make “appropriate submissions” - if the need arose for making such submissions after the sentence is made known. On the contrary the learned Deputy Solicitor General impressed upon the court the need to impose a custodial sentence. I presume that the accused-editor has no previous convictions for a similar offence although the defence did not choose to place even that fact before the court. Freedom of the Press is part of the larger freedom of the individual, HOWEVER THE FREEDOM OF THE PRESS IS NOT HIGHER THAN THE FREEDOM OF AN ORDINARY) CITIZEN AND IS SUBJECT TO THE SAME LIMITATIONS AS ARE IMPOSED ON AN INDIVIDUAL . It has been said that every person possesses a right to his reputation which is regarded as property. As such, nobody can so use his freedom of speech or expression as to injure another’s reputation or to indulge in what is called character assassination - although one can say, without any fear of contradiction, that the reconciliation of the protection of individual reputation with the competing demands of free speech is going be an acute problem in the future, if, in fact it is not already so - because both interests are highly valued - the one as perhaps “the most dearly prized attribute of civilised man” - the other as the very foundation of democratic community - which places the court - In choosing the appropriate and condign sentence in somewhat of a dilemma.
As stated in Gour the conduct of an accused person subsequent to the publication of the libel and even during the trial may be taken into consideration by the court in deciding on the sentence. The learned Deputy Solicitor General dwelt, at length, on this aspect. The learned D.S.G pressed for a custodial sentence. But I prefer to leave out of consideration such conduct in the accused’s own interest and for his own benefit - for the moving words of Portia, which has become justly celebrated, were not an age but for all time: “The quality of mercy is not strained - It droppeth as the gentle rain from heaven.... It is twice blest. It blesseth him that gives and him that takes and earthly power doth then show likest God’s when mercy seasons justice ....”
Gour, on “Penal Law of India” had reproduced an excerpt from a judgement which as it is instructive in this regard, I have chosen to reproduce below. That judgment explains the factors that would be relevant to question of punishment. To quote: “The journalist wields a very powerful weapon in his hand which can mould public opinion very easily”. The more powerful the weapon the higher is the responsibility cast upon the person holding such a weapon. A journalist is therefore required to attach more care and caution in publishing items which are likely to harm the reputation and good name of others. It is common knowledge that papers publishing scandalous articles sometimes get wide publicity and the circulation-increases - and consequently the income of the journalist also increases. THIS THEREFORE CALLS FOR DETERRENT PUNISHMENT AND A MERE SENTENCE OF FINE IN SUCH CASES WILL NOT AT ALL BE ADEQUATE. For such person to pay the fine is very easy and it would not deter him from publishing again one equally libelous article. Assassination of character has been considered by courts from time immemorial as no less serious than assassination of persons because character of a person is one of the most valuable things that a person possesses.” The above is an excerpt from an Indian judgment referred to in Gour.
Although the learned Deputy Solicitor General strenuously pressed for a custodial sentence and notwithstanding the points highlighted in the excerpt of the Indian judgment cited above, I still believe that a fine and a suspended sentence would meet the ends of justice.
For the foregoing reasons I do hereby sentence the accused on the 1st count to a fine of Rs.7500/- (Seven Thousand Five Hundred). In default of the payment of the above fine on the 1st count - the accused is hereby sentenced to 4 (Four) months simple imprisonment. In addition, on the 1st count the accused is sentenced 12 months’ simple imprisonment suspended for a period of 7 years. On the 2nd count, the accused is hereby sentenced (a) to a fine of Rs.2500/- (Two Thousand Five Hundred) (b) In default of the payment of the above fine in respect of the 2nd count the accused is hereby sentenced to 03 months simple imprisonment.
( c) In addition, on the 2nd count the accused is hereby sentenced to 06 months (Six) simple imprisonment suspended for a period of 07 years. The above suspended sentences to run concurrently.
U. de Z. Gunawardena, High Court Judge of the Western Province - Colombo.
01 . 07 .1997.
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