How the law is used to silence the truth

IMAGINE that you are the editor of a responsible newspaper. If you receive sufficient factual information about a great wrong committed by a powerful person what should you do as the responsible editor? If this question is deirected at society at large there is no doubt that they will expect you to place all the facts before the public.

Yet, this is not such an easy matter. Even though it is the duty and responsibility of an editor to place such facts before the public, the legal situation that he has to deal with will undoubtedly strike fear in him. You will surely ask why one should be afraid of the law if one has sufficient evidence to prove that what has been written is the unvarnished truth.

I am not saying that our court system is biased. But neither can I say that it is always impartial. The verdict depends on the nature of the judge. It will certainly be in your favour if the judge is well versed in the law and abides by its rules. But if the judge is lured by the influence of a contending party, then you are sure to be in trouble. It is true that you can seek redress in the higher courts if justice is not meted out in the lower ones. But you have to have the wherewithal to do so.

Here’s one of my encounters with a former Minister of Coconut Industries.

Minister of Coconut Industries Indradasa Hettiarachchi was running a Housing Cooperative with the help of some of his political stooges. The Minister was the President of the Cooperative. He was in the business of purchasing land from the Land Rehabilitation Commission for an extremely low price with the help of J.R. Jayewardene, dividing it into smaller blocks, and selling the lots for a higher price. According to the concocted constitution, those who purchased land had to be members of the Housing Cooperative. According to the real Constitution, only those who did not possess land had the right to purchase it. While one person could possess only one block of land, the sale of the block was also prohibited.

But while the Minister’s followers had purchased land in the name of all their family members, most of them had re-sold it for exorbitant profits.

It was required of all those who purchased land that they also paid, aside from the money for the land, a certain amount to a development fund being run by the Minister. In the first phase of land sales, each purchaser had to contribute Rs 1000 to the Development Fund, in the second phase, the amount was Rs 5000. In the third phase, it was 25% of the value of the land, and in the fourth phase, it was 33% of the value of the land. The Minister’s Development Fund had collected Rs 39 Lakhs in this manner.

Based on this information I had received, I published a lead story under the heading “Coconut Minister in Land Offence” dealing with the corruption in the Housing Cooperative under the Presidentship of the Minister.

The Minister then took action against the Ravaya not only on the basis of parliamentary privilege but went on to file a criminal defamation case against the paper.

I gave a statement on the matter to two officers from the Criminal Investigation Bureau who came to the Ravaya office. It was clear that they were more interested in collecting evidence against me than in finding out facts about the incident.

Even after the CID documents had been sent to the Attorney General, it was clear that there was no investigation as to whether the CID had conducted a fair inquiry into the matter. And, in the spirit of the Minister, the Attorney General also filed a case of criminal defamation against me in the High Courts.

The Ravaya is not a rich newspaper, so we had to seek the support of a legal aid organization to appear on our behalf in the case. I discovered through this incident that though there were many legal aid organizations, what they were doing was not providing a competent lawyer who is able to conduct a case successfully, but one who was merely complying with certain principles dictated by another. The lawyer they provided us with was not incompetent, but he wasn’t astute enough to grasp the complexities of the case.

The first witness to be called forward in the case that was heard before Shirani Thilakawardena of the High Court was the Minister himself. It was evident that my lawyer was not making optimum use of a host of evidence he possessed against the Minister. Realizing that I would be in trouble if the case went on this tack, I requested my lawyer to step down the very next day. As he was a senior lawyer, it was difficult to bring forward a new lawyer at this juncture, and I represented myself in court for a few days.

It was clear from the beginning that the judge was partial towards the Minister. Even though she had no wish to make me the guilty party, it was obvious that she didn’t want to get the Minister into trouble.

She refused to admit that it was a crime to take money for a development fund from those who had purchased land from the Minister, and pointed out all the good services the Minister had rendered to the public through the fund.

Even if all the Minister had done was good deeds through the money he had collected from the Fund, it is contradictory to all Cooperative laws and all other laws of the country to charge money for a fund external to the Housing Cooperative operations from those involved in purchasing Housing Cooperative land. Furthermore, the Minister had used the money from the fund to boost his political image. In that sense, it was used for personal gain, it was a corrupt act, and it was illegal. It was evident that the judge was trying her best to keep the case away from these central issues.

After a few days, I hired another lawyer, and considering the judge’s partiality towards the Minister and her inability to mete out justice, I also requested that the case be heard from the beginning before another judge. My lawyer, after going through the case reports, also concluded that the judge had been partial.

We discussed the case with a prominent lawyer in the country. He told us that it was difficult to win a case in the High Courts on the basis that the judge had been partial, however true the case may be, and that one judge will never go against another judge. He said it was wiser to use some other technical point for an appeal. Actually, my lawyer had by then found a point which could be used for an appeal. During the period in which I had no lawyer, the judge had procured from me an admission which could affect the whole case. Based on this, the appeal for a fresh hearing before another judge was rejected. We were compelled to challenge the decision of the Court of Appeal and take the case up to the Supreme Courts. It was the conclusion of the Supreme Courts that the High Court inquiry had been unconstitutional. It was concluded that the judges had failed to mete out justice in the Court of Appeal, and that it was not done to inconvenience the accused for something he was not to blame. Hence, I was cleared of the charges of criminal defamation. So it is true that justice won after a long process. But what would the outcome of the case have been if I hadn’t had the perseverance to go through this process?

While the case was in the Court of Appeal, the Commissioner for Cooperative Development was conducting a special inquiry into the Horana Housing Cooperative on the instructions of the Minister of Cooperatives. The outcome of the inquiry was that the Horana Housing Cooperative had not abided by Cooperative rules and regulations in the utilization of land and funds. The Commissioner concluded that land had been sold under unconstitutional conditions and that the Development Fund that had been conducted outside the Housing Cooperative activity was illegal. I had said the same thing in my newspaper report a long time before this. But I had to face a case of criminal defamation for the sin of presenting facts to the public. And, until after a long legal rigmarole, I never received fair treatment even from the courts.

This second experience I am going to relate is graver. It is also unpleasant. It happened during the time when President’s Counsel Thilak Marapone was Attorney General.

Our attention had been directed towards the former Railway General Manager W.A.K. Silva (now out of the country) by stories of illegal activity carried out by him at the Department of Railways. Even though W.A.K. Silva was a very corrupt official, he was very powerful and had close connections with former Presidents R. Premadasa and D.B. Wijetunge. There was no obstruction to his unscrupulous activity because he was a close associate of these government heads and also because bribes were seeing their way into the pockets of the Minister of Transport and high officials at the Ministry.

The Railway Department had a joint project with the Australian John Holland Company for producing concrete sleepers. A dispute arose between the company and the Railway GM on a statement made by him that John Holland owed him a 25% commission if payment for the concrete sleepers produced up to then was to be completed, and that a payment of Rs 30 per sleeper would be charged by him for each sleeper produced thereafter. We were able to get hold of a fax communicated to the local group of the John Holland company by a group affiliated to John Holland in Australia. The fax included startling information pertaining to the amount of money John Holland had been paying the Railway GM as commissions for dealings between the Railway Department and John Holland. With the information included in the fax, we published a detailed article in the Ravaya under the heading “Railway Boss asks for Women along with Commissions”.

The GM Railway, upset by the disclosure, and to prevent the case being brought up in Parliament, filed a case of defamation against me at the Colombo District Courts with a request for compensation amounting to Rs 50 lakhs. When an Opposition Minister raised the issue in Parliament, it was the Minister of Transport who pointed out to the Speaker that the case was already before the courts and that discussion of the issue must not be allowed.

Mr. Silva, not satisfied with a defamation case, also worked towards a criminal defamation case. As customary, a CID officer procured a statement from me. Even though the Attorney General had received the CID report, he showed no enthusiasm to bring the case on.

After the appointment of Mr. Thilak Marapone as Attorney General, I had angered him through a certain incident.

We had published a special feature in Ravaya titled “The Law approves the Rape of Children by the Powerful” based on facts gathered by us of an incident where a case against a 65-year old Senior Police Superintendent who had raped a 11-year old servant girl had been called off by the intervention of the Attorney General inspite of the existence of abundant evidence against the guilty party. We had also requested our readers to write in to the Attorney General expressing their disapproval of this decision.

As soon as the paper was out, Mr. Thilak Marapone contacted me by ‘phone. First, he reminded me of an old association between us when I had appeared before the courts as an accused in the 1971 insurrection. Thilak Marapone had then been in the Bar Association of Colin Thome who conducted the inquiry. Among others in that Bar Association were Ranjith Abeysooriya and the present Attorney General Sarath Silva. I told him that bygone incidents were of no importance in this matter, and that I hadn’t written the story because of a personal grudge, but because of the injustice dealt against the 11-year old girl.

He told me that no wrong had been done by him to the girl, that she had a bad character and that even a medical examination had failed to ascertain proof of rape. When I told him that I was not ready to believe that she was guilty, and that the said medical reports were in front of me at that moment, the noise on the other side subsided at once.

That Ravaya article succeeded in creating public outrage and persistent public action against the Attorney General. The Attorney General was also compelled to reconsider the case of the 11-year old girl.

Either because of the Attorney General’s grudge against me regarding this matter, or the friendship between the GMR and the Attorney General, or because of the President’s influence, the Attorney General brought a case of criminal defamation against me based on evidence that had so far been put aside.

But before filing the case, the Attorney General had to take off the records certain evidence that could work against him in the inquiry. By this time, an inquiry was being conducted into the assets of W.A.K. Silva before the Bribery Commissioner. If, at that juncture, the Attorney General had brought forward a case of criminal defamation against me to the effect that I had accused the GM Railways of bribery, it could itself have proved that the he was guilty.

Whatever the reason, the Attorney General needed to call off the inquiry now before the Bribery Commissioner. It is clear that President also D.B. Wijetunge wanted this.

So the President and the Attorney General spoke about the case against W.A.K. Silva with the Bribery Commissioner. She was also requested to inform in writing to W.A.K. Silva that there was no evidence for the case to be continued.

This coercion didn’t please the Bribery Commissioner. She called for the papers on W.A.K. Silva’s case and stated as follows on page 29: “The President and the Attorney General have on several occasions inquired verbally about this case from me, and they have also asked me whether there was any possibility of closing the case, and have also requested me to inform the accused in writing that there was no evidence against him. Please present a certified copy of these documents to me as I have to investigate all the documents.” -Nelum Gamage, 12.11.93.

It is because of this note that the Bribery Commissioner was sacked and posted as an Additional Secretary in the Ministry of Justice. She was removed from the post of Bribery Commissioner on the 21st or 22nd of December. It was on the 23rd of December that the case against me on the criminal defamation of W.A.K. Silva, of which the documents had been rotting in the AG’s Department for so long, was approved for hearing.

Suranjith Hewamanne who appeared for me before the Maligakanda Magistrate on the 20th of May 1995 presented objections against the case on two counts.

He requested the courts to call off the case on the grounds that according to articles 480 and 481 of the Penal Code that the Attorney General’s approval was essential for filing a case, and that such an approval was not included in the legal documents, that a clear certificate was necessary for such a case in such a court, without which the court had no power to accept a case and issue subpoenas.

The prosecutors stated that written instructions had been received from the Attorney General, and that it had not reached the Arbitration Board because there was ample evidence against the accused.

As neither the Arbitration Board Act, nor the Attorney General’s approval had been presented in court, the magistrate stipulated a date for their submission. He stated that initial evidence would be considered only on submission of the documents.

The next day, the cat was out of the bag. Aside from presenting the Attorney General’s approval, the prosecutors also presented a statement by the Attorney General dated 27th May 1994 to the effect that indictments had been presented against the accused in the High Courts.

When the Attorney General has presented indictments to the High Courts, the Magistrate Courts are not authorized to carry out an inquiry on the same case.

By the rule of law, a Arbitration Board Certificates is required before an inquiry can be made into such a complaint. The Attorney General was in trouble because he had violated this vital condition in bringing forward the case. So it was essential for him at this juncture to bring forward a trump card such as this to exploit his powers. Even though the prosecutors stated that the case had been presented to High Courts by then against the accused, we later discovered that such a case had not been filed by that date.

The Magistrate was not pleased with the conduct of the Attorney General on this matter. In his verdict, the Magistrate condemned the action of the Attorney General, and he had to later pay for his forthrightness.

The Magistrate on this occasion was Mr. E.A.P.R. Amarasekara, the then additional Magistrate of the Maligakanda Magistrate Courts. A lawyer in the Judicial Service later told me that Mr. Amarasekara had been transferred to Kabethigollewa after his verdict condemning the Attorney General. Mr. Amarasekara was not partial to me in the case. He was merely a law abiding magistrate. But the Attorney General exploited his powers because he was angered by this verdict, and Mr. Amarasekara was posted to remote Kabethigollewa. The lawyer who related this story to me said finally, “Don’t write anything about the fact that Mr. Amarasekara was transferred to Kabethigollwewa. If you do so, it is you who will be affected, not him. If this incident gets publicized, any judge will be wary of giving a verdict in your favour, however much evidence there is”.

It need not be said that Mr. Thilak Marapone’s mode of action does not befit one in his position, or even that of an average lawyer.

I created a public awareness on the matter of the 11-year old girl who had been raped by the 65-year old retired police officer not because I had a personal grudge against Thilak Marapone but because I had to act as a responsible newspaper editor. But it may be that Mr. Thilak Marapone cultivated an animosity against me because of this. So it is clear that he brought the case of a well-known crook forward as a means of revenge against me. He knew well enough that he was assisting an officer who was known to be corrupt and had been charged with allegations of bribery. The basis of the charges against me was my newspaper report that W.A.K. Silva took bribes. Mr. Thilak Marapone also knew that an inquiry was being conducted against him by the Bribery Commissioner. But Mr. Thilak Marapone did all he could to close the case against the General Manager, Railways so he could bring forward the case against me.

I wouldn’t know what sort of punishment should be meted out to an Attorney General who seeks to protect such an individual at the expense of a newspaper editor who attempted to create public awareness on the issue.

I feel justice has to be meted out on this matter. There has to be somewhere one can go for redress in the face of injustice. I have inquired from many senior lawyers whether any legal action can be taken against Mr. Thilak Marapone on this issue. Their reply was that Mr. Thilak Marapone held a high post while he committed the crime, and that any legal action against him now would be legal action against his position, and not himself personally. But I am not ready to accept this. If I have been subject to injustice, there should be a form of relief for me. If necessary, this article can be considered a public complaint brought forward by me and presented to the Chief Justice. Also, this article can be used by the Bar Association to take a decision on Thilak Marapone. I am going to observe keenly how legal organizations are going to act on this matter.

It is only government political heavyweights and state officials who are able to use the criminal defamation law as a weapon against journalists. Many powerful people outside these two arenas also use defamation law as a weapon against newspaper exposes against them.

Ravaya has only a short six-year history as a newspaper. During this short span a large number of persons have been stung by Ravaya’s exposes, issuing ‘demands for compensation’ on the grounds of defamation. The complete list of suits and the amounts demanded are given below:

List of suits and amounts demanded

The amounts printed in the right-hand column, top to bottom, are: Rs. 50 lakhs, Rs. 250 lakhs, Rs. 50 lakhs, Rs. 250 lakhs, Rs. 50 lakhs, Rs. 1000 lakhs, Rs. 50 lakhs, Rs. 500 lakhs, Rs. 50 lakhs, Rs. 50 lakhs, Rs. 100 lakhs, Rs. 100 lakhs, Rs. 250 lakhs, Rs. 50 lakhs, Rs. 500 lakhs, Rs. 50 lakhs, Rs. 500 lakhs, Rs. 50 lakhs; and on the following page Rs. 50 lakhs, Rs. 10 lakhs, Rs. 30 lakhs, Rs. 10 lakhs, Rs. 100 lakhs, Rs. 10 lakhs, Rs. 2000 lakhs, Rs. 100 lakhs, Rs. 100 lakhs, Rs. 3000 lakhs. Total: Rs. 9910 lakhs.

Even though a journalist’s report may be both accurate and fair, the powerful person who has been so exposed is entitled to take the editor of the newspaper to court. By this means alone the politician or bureaucrat concerned can “show” the world that he has been wronged and that the claims against him are false. In addition, if the newspaper that the editor represents is not rich, then it cannot afford to retain high-powered lawyers and is, therefore, handicapped since its inexperienced legal team has to stand against the big guns of the opposition. This inequality certainly influences the outcome of the case. To make matters worse, such cases take so long to be resolved that the editor has to waste a great deal of his time in the courthouse. Therefore, even though an editor has before him sufficient authenticated data, in consideration of the fact that he runs the risk of facing a long and tortuous period of pressure, he may refrain from publishing the evidence he has against the powers-that-be.

There are also certain weaknesses and loopholes in the conventional legal system which the powerful are able to manipulate on these occasions. I encountered such a case in point recently:

The Ravaya of December 05 1993 published an article with the headline “Minister and Wife Openly Embezzle Public Funds” about the violation of Provincial Council circulars and tender regulations by the Sabaragamuwa Provincial Council’s Nalaka Athukorala, the Minister of Food, Cooperatives and Rehabilitation and his wife.

Ravaya had enough evidence to make a case against the Minister at the time of publication. Moreover, the attention of the Provincial Council, the Government and the Opposition had already been directed towards these charges.

Based on the information contained in Ravaya, opposition members in the Provincial Council brought forward a no-confidence motion against the Minister signed by 14 MPs. Even though Nalaka Athukorala had promised Opposition Leader Ranil Wickremasinghe and the Chief Minister of the Provincial Council Jayathilake Podinilame to resign from the posts he held while the inquiry was being conducted by the Chief Minister, he failed to do so. The Chief Minister therefore took over his powers in December 1995.

After the publication of the news item, the Minister filed a defamation case for Rs 50 Lakhs against the Ravaya Editor and the Printer before the Colombo District Courts. The case was filed against us by the John Wilson Legal Company on December 15 1993.

If the accused fail to appear in court in a civil case, the court has the authority to hear the case ex parte, and to give a verdict based on that evidence. Furthermore, if the accused hears that there is an ex parte case being conducted in court against him, there is no means for him to intervene until the verdict has been delivered. The accused should come to court only on a formal subpoena served by the fiscal. So all that a crooked person has to do is to prevent the fiscal serving the subpoena to the accused and get him to make a statement in court that the accused was avoiding receiving the subpoena. It seems that this simple procedure has been conducted in the instance of Naluka Athukorala’s case against me.

The Ravaya office was then situated in Ratmalana. The duty of serving the subpoena therefore fell on the fiscal of the Mount Lavinia Courts, but for some mysterious reason, the serving of the subpoena for this special case was assigned to the fiscal of the Moratuwa Courts.

It is easy to find the office of a well-known newspaper. But the Moratuwa fiscal had informed the courts that the accused was not traceable according to the address given to him.

On 26 January 1995, a affidavit was presented on a motion brought forward by the prosecuting lawyers stating that a substitute subpoena be served as the accused was avoiding the subpoena. This substitute means pasting the subpoena on the door of the accused residence/office.

The Court allowed a substitute subpoena on February 3rd, 1995. The court has the authority to issue a substitute subpoena only in an instance where there is substantial evidence that the accused is trying to avoid receiving it. Only once is it stated in the “court service notes” that the fiscal went to the Ravaya office with the intention of serving the subpoena. The courts had not considered whether an Editor of a well-known newspaper would attempt to avoid a subpoena. Neither had the courts contemplated why the subpoena which should have been served by the Mt. Lavinia Courts was served by the Moratuwa Courts instead.

It is here that the second phase of this revolting incident begins.

Even though a person can avoid being served a subpoena, a building cannot do so. If the subpoena had at least been pasted on the door, I would have known I had been summoned by courts. Even though the case was called on the 28th of April 1994, I had not been served with a substitute subpoena.

The case was recalled on the 26th of July 1995. Even by then, I had not been served a substitute subpoena.

By that time, it was a well-known fact that the Ratmalana office of Ravaya was to be shifted to Maharagama. The public was informed of this change of venue through a public notice on the 3rd of July 1995 stating that the Ravaya office will be shifted to Maharagama with effect from the 7th of August, 1995. The notice also carried a sketch with directions to the new office. It is impossible that the prosecutors in the case didn’t know all this.

On the 9th of August, 1995, exactly two days after the Ravaya office had shifted, and when the case was to be called, the responsibility of serving subpoena, which had so far fallen on the Moratuwa fiscal, was assigned to the Mt. Lavinia fiscal.

Strangely, from then onwards, everything began happening quickly. The Mt. Lavinia fiscal pasted the subpoena on the old office of the Ravaya in Ratmalana on the 11th of October, 1995, and reported it. When the case was called on the 17th of November, 1995, the Mt. Lavinia fiscal reported to court that the substitute subpoena had been served.

Then, the court, taking the case on an ex parte basis, ordered the accused to pay the sum of Rs 50 lakhs demanded by the prosecutor.

Those responsible for the law must be fair and act in a way that reflects this fairness. But all this shows only the reverse.

In most civilized countries, when a newspaper exposes corrupt practices, those accused resign from their posts and allow for a fair inquiry. If those accused do not resign, they are temporarily requested to leave their duties while the inquiry is conducted. Legal action is taken against newspapers only where defamation has occurred.

On the other hand, in most other countries, it is the bounden duty of heads of institutions to provide information requested by journalists. There is no such tradition in Sri Lanka. In other countries, the complainant is given the responsibility of proving that court reports are false. But in Sri Lanka, the journalists have the responsibility of verifying the reports. In other countries, the court has the ability to investigate the truth or falsehood of a newspaper report. But in Sri Lanka, the courts only have the right to conduct the inquiry, not the right to investigate the truth in a wider sense.

Prof. G.L. Peiris, who can be considered a legal scholar, promised journalists that a new court procedure would be created to circumvent the weaknesses in our current court system. Now, he is the Minister of Justice, but there are no signs of him keeping his promises.