VICTOR IVON v. SARATH N. SILVA , ATTORNEY-GENERAL AND ANOTHER

039-SLLR-SLLR-1998-1-VICTOR-IVON-v.-SARATH-N.-SILVA-ATTORNEY-GENERAL-AND-ANOTHER.pdf


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VICTOR IVON
v.SARATH N. SILVA, ATTORNEY-GENERAL AND ANOTHER
SUPREME COURTFERNANDO, J.,
WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. APPLICATION NO. 89/98MARCH 11TH AND 19TH 1998.
Fundamental Rights – Prosecution of persons for defamation – Penal Code -Sections 479 and 480 – Code of Criminal Procedure Act – Sections 135 (1) (f)135 (6) and 393 (7) – Indictment in the High Court – Attorney-General's discretion- Articles 12 (1) and 14 (1) (g) of the Constitution.
The petitioner complained that the Attorney-General and/or his officers hadindiscriminately, arbitrarily and for collateral purposes without proper assessmentof the facts indicted the petitioner in High Courts with several offences of criminaldefamation in breach of the petitioner's rights guaranteed by Article 12 (1) and14 (1) (g) of the Constitution.
Per Fernando, J.
'It is clear that the Attorney-General has a statutory discretion, which involvesseveral aspects. He has to decide whether to give or refuse sanction; andwhether to exclude a summary trial, and in that event, whether to ordernon-summary proceedings or to file an indictment. The exercise of thatdiscretion is neither legislative nor judicial action but constitutes ’executive oradministrative action*.
Held:
The Attorney-General's power to file (or not file) an indictment for criminaldefamation is a discretionary power, which is neither absolute nor unfet-tered. Where such a power or discretion is exercised in violation of afundamental right, it can be reviewed in proceedings under Article 126.
The pendency of proceedings in another court will not bar the exerciseof the constitutional jurisdiction of the Supreme Court. However, that wouldbe a circumstance which would make the court act with greater cautionand circumspection.
The petitioner had failed to establish a prima facie case for review.
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APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonasekera with Suranjith Hewamanne, J. C. Weliamuna, P. K. T.Perera and Ms Kishali Pinto Jayawardena for the petitioner.
K. C. Kamalasabayson, P.C, AS.G with U. Egalahewa, S.C and HarshaFernando, S.C for the respondents.
Cur. adv. vult
April 3. 199&
FERNANDO, J.
We have to consider whether to grant leave to proceed with thisapplication, which alleges infringements by the Attorney-General ofArticles 12 (1), 14 (1) (a) and 14 (1) (g) of the Constitution, givingrise to questions which are as complex as they are important.
The petitioner is the Editor of the "Ravaya", a Sinhala weeklynewspaper which enjoys a substantial circulation as well as areputation for exposing misconduct and corruption. He complainsabout two indictments, served on him in January, 1998, for criminaldefamation of a former Minister of Fisheries (in the "Ravaya" of13.2.94), and of the present Inspector-General of Police (in the 'Ravaya"of 19.1.97). His petition refers to four previous indictments. One wasin 1993: there, after an appeal to this Court, the proceedings cameto an abrupt end in 1996 on account of a defect in the proceedings,which was not attributable to the prosecution. The second was in 1994:initially proceedings had been instituted in the Magistrate's court;an objection was taken that sanction had not been given; he wasdischarged, but thereafter an indictment was filed in the High Court;and that was later withdrawn. (In the meantime, the victim had filedthree civil cases which were dismissed for default of appearance.)Another was filed in 1996, and that too was withdrawn in 1997. Thefourth was filed in 1997, and the proceedings in the High Court arestill pending.
As there was some uncertainty as to the factual averments, andas the issues were more than ordinarily difficult, on 11.3.98 we askedMr. Kamalasabayson to file a statement clarifying the position as toall six indictments. That was done. Among the matters disclosed wasthat the Attorney-General had declined to institute or sanction
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proceedings for criminal defamation against the petitioner, uponcomplaints by nine other persons.
The petition also referred to several other incidents as well as"Ravaya" articles critical of the Attorney-General and officers of hisDepartment from which the inference of bias was sought to be drawn.
The petitioner stated his grievance in this way:
. . the Hon. Attorney-General and/or his officers have indis-criminately, arbitrarily and for collateral purposes without properassessment of the facts as required in law for criminal defamationprosecution and without regard to the constitutional guaranteesgiven to journalists have indicted the petitioner in High Courts asaforesaid and therefore the petitioner's fundamental rights guaran-teed to him under Article 12 (1) have been violated . . . [D]ueto the aforesaid actions … the petitioner's right to freedom ofspeech and expression including publication has been violatedcontrary to Article 14 (1) (a) … and … his right to freedomto engage in his lawful profession has been effectively violatedcontrary to Article 14 (1) (g) of the Constitution."
I must add that the indictments, incidents and articles referredto by the petitioner go back to 1992, and thus cover the periods ofoffice of the present Attorney-General as well as his two immediatepredecessors in office.
Criminal defamation is defined in section 479 of the Penal Code,and is punishable under section 480. It is an offence triable summarilyby the Magistrate's Court, and by the High Court as well. By virtueof section 135 (1) (/) of the Code of Criminal Procedure Act, noprosecution for criminal defamation can be instituted either by thevictim or by any other person (including a “peace officer") except withthe sanction of the Attorney-General. However section 393 (7) permitsthe Attorney-General directly to file an indictment in the High Court,and to direct that non-summary proceedings be held "having regardto the nature of the offence or any other circumstances", in whichevent section 135 (1) (!) will cease to apply (section 135 (6)).
It is dear that the Attorney-General has a statutory discretion, whichinvolves several aspects. He has to decide whether to give or refuse
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sanction; and whether to exclude a summary trial, and, in that event,whether to order non-summary proceedings or to file an indictment.The exercise of that discretion is neither legislative nor judicial action,but constitutes “executive or administrative action".
The important question in this case is whether the Attorney-General's discretion in regard to the institution of criminal proceedingsis absolute, unfettered and unreviewable, in which event leave toproceed must be refused without further ado.
The question is not simply whether a decision to file an indictmentcan be reviewed; it is a larger question, whether a decision to grantsanction to prosecute, or to file an indictment, or the refusal to doso, can be reviewed. Whichever way that question is answered, itmay have implications in regard to decisions by public officers toinstitute (or refrain from instituting), criminal proceedings.
Mr. Kamalasabayson, P.C, submitted that whether or not theAttorney-General's discretion can be reviewed, it was properlyexercised in relation to the two impugned indictments served inJanuary, 1998, and that leave to proceed should be refused on thatground. Mr. Goonesekera contended that even if, in general, thatdiscretion might not be reviewable, it was renewable in regardto indictments for criminal defamation, issued in violation of thefundamental right to freedom of speech.
I do not think it is possible to look at the two indictments, on thebasis of either of the above submissions, without first consideringthe nature, scope and purpose of that discretion. It is only thenthat we can determine whether that discretion was properly exercised,as Mr. Kamalasabayson says it was, or whether, as Mr. Goonesekeracontends, prima facie, it infringed the petitioner's rights.
A primary consideration is that the constitutional jurisdiction ofthis Court to grant relief for infringements of fundamental rights byexecutive or administrative action must necessarily apply to the exerciseof any power or discretion conferred on a public officer by an Actof Parliament, in the absence of a constitutionally valid derogation fromthat jurisdiction.
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In order to determine the nature of the discretion to file an indict-ment, and whether it is reviewable, and if so, in what circumstancesand to what extent, it is useful first to examine the discretion to grantsanction: because it is difficult to see on what principle the Attorney-General could conclude that a prosecution was not warranted andtherefore refuse to grant sanction, but nevertheless file an indictment.Let me begin with an extreme hypothetical case. If a person complainsthat he was criminally defamed at a public meeting, at which he wasnot present, and the only witness he has, as to the actual wordsspoken, is a person who is quite hard of hearing, could sanction begranted, without any further investigation, and without the statementof the accused having been recorded? A decision to prosecute in suchcircumstances would be, prima facie, arbitrary and capricious, and sowould the grant of sanction. If the accused were to seek judicial review,relying on Article 12 (1), and submitted a certified copy of Courtproceedings conclusively establishing that at the time of the allegeddefamation he was giving evidence in a Court one hundred miles away,should this Court say that his only remedy was to place that evidencebefore the Magistrate's Court; obtain an aquittal; and then recoverdamages for malicious prosecution? That would be to condone theuse of the executive power of the State to pervert the criminal justicesystem into an instrument of harassment, instead of a shield for theprotection of the citizen.
Let me turn to another extreme example, where there is sufficientevidence of guilt. Suppose that during an election campaign rivalpoliticians were persistently defaming each other, and that theAttorney-General consistently refused sanction despite adequateevidence of guilt – referring all the complainants to their remediesunder the civil law and the election laws. I think that would be proper.Suppose, however, that he made exceptions in regard to all casesin which the alleged wrongdoer belonged to one particular politicalparty. Could it be said that the accused in those cases cannot complainthat the grant of sanction infringed Article 12 (2), simply becausethere was sufficient evidence against them to justify a prosecution?In other words, where a decision has to be taken whether or not togrant sanction to prosecute the members of one class of allegedoffenders, similarly circumstanced in every respect, save politicalaffiliation, could that decision turn solely on their political persuasion?It might conceivably be argued that alleged offenders against whomthere is evidence can hardly be heard to complain that other offenders
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are not being prosecuted. But let me look at the problem fromthe point of view of those defamed. Could it possibly be said thatcomplainants who belonged to that political party were not entitledto complain that the refusal of sanction to them was in violation ofArticle 12 (2), in a situation in which complainants from rival politicalparties were granted sanction? Such examples can be multiplied. Ifall persons complaining of criminal defamation by articles publishedin a rival newspaper were denied sanction despite ample evidence,but sanction was regularly granted for prosecutions against the "Ravaya"even on tenuous evidence, would there not be an infringement ofArticle 12 (1)?
It seems to me that the undoubted discretion regarding sanctionis subject to obvious limits: where the evidence was plainly insufficient,where there was no investigation, where the decision was based onconstitutionally impermissible factors, and so on.
Let me now turn to the discretion to file an indictment. Section393 (7) does not contemplate that in every case where sanction isgranted, an indictment should be filed. There must be something morein "the nature of the offence or any other circumstances of the case",and that becomes clear when one compares the different conse-quences which result from an indictment. Where sanction is grantedto the victim to prosecute, it is he who must meet the expenses ofthe case – retaining lawyers, making investigations, finding witnessesand ensuring their attendance. And if his prosecution is unsuccessful,it is he who runs the risk of an action for damages for maliciousprosecution. Where a peace officer institutes proceedings in theMagistrate's Court, or the Attorney-General files an indictment, thevictim of the alleged defamation is relieved of all those burdens,expenses and risks.
The victim of defamation may completely clear his name by meansof a civil action for damages, which has the advantage of a lowerburden of proof. But the criminal law allows him a penal remedy, ifhe gets sanction, and that may perhaps be more satisfying to himthan monetary compensation for the wrong done to him. But whyshould the State undertake the burdens, the expenses, and the risks,of vindicating his reputation? Is the power to do that – whether bymeans of a prosecution by a peace officer or by indictment – intendedto be used purely to confer a benefit on the victim, or only where
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it would serve the public interest? It seems to me that, in order tojustify that burden being shifted to the State, there must be somedistinct public interest and benefit, as, for instance, where the allegeddefamatory statement is likely to disrupt racial or religious harmony,or to prejudice Sri Lanka's international relations, or to erode publicconfidence in the maintenance of law and order or in the administrationof justice.
It is enough, for the purposes of this case, to say that the Attorney-General's power to file (or not to file) an indictment for criminaldefamation is a discretionary power, which is neither absolute norunfettered. It is similar to other powers vested by law in publicfunctionaries. They are held in trust for the public, to be exercisedfor the purposes for which they have been conferred, and nototherwise. Where such a power or discretion is exercised in violationof a fundamental right, it can be reviewed in proceedings underArticle 126.
Does the fact that the High Court has jurisdiction in respect ofthe indictments filed affect the jurisdiction of this Court under Article126? Upon the filing of an indictment it is the High Court alone whichhas the jurisdiction to try the accused on that indictment; it has alsothe power to consider whether that indictment complies with legalrequirements, as to form, etc., but it has no authority whatever toreview the antecedent process leading up to the executive act ofissuing the indictment, and particularly whether it was issued in violationof the fundamental rights of the accused. That is a distinct jurisdiction,solely and exclusively vested in this Court under Article 126. Theexercise of that jurisdiction will not adversely affect the jurisdiction ofthe High Court. Thus, in analogous situations, this Court can properlydetermine whether the arrest and detention of a person was contraryto Article 13, although a trial is pending in the High Court: a findingby this Court that the arrest was lawful (or unlawful) in no way inhibitsa subsequent verdict by the High Court that the accused was notguilty (or guilty), because the issues relating to the constitutionalityof an arrest are different to those relating to guilt. And, conversely,a verdict by the High Court that the accused is guilty (or not guilty)will not be inconsistent with a subsequent decision by this Court thathis arrest was nevertheless unlawful (or lawful). Likewise a findingby this Court that the decision to file an indictment for criminaldefamation was in violation of, say, Article 12 (2) or Article 14 (1)(a), does not preclude the High Court from reaching a verdict of
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guilty – unless this Court finds that the violation was so serious asto require the quashing of the indictment. That, however, is both properand inevitable: this Court is superior to the High Court, and what ismore its constitutional jurisdiction under Article 126 takes precedenceover the statutory jurisdiction of the High Court.
While the pendency of proceedings in another Court do not barthe exercise of the constitutional jurisdiction of this Court, that wouldbe a circumstance which would make this Court act with greatercaution and circumspection.
The next question is whether the petitioner has established a primafacie case for review.
Mr. Goonesekera made a submission which suggests that ajournalist or a newspaper should be considered differently to otherpeople. He submitted that in exposing misconduct and corruptionthrough the "Ravaya“ the petitioner was performing a service tothe public. Mr. Kamalasabayson did not question that. But Mr.Goonesekera went further. He claimed that it was not always possiblefor a newspaper, under the pressure of deadlines, to ensure accuracy;that mistakes were sometimes made; but if mistakes did occur, thepolicy of the "Ravaya" was to publish corrections and in support hereferred to a notice published in the “Ravaya" inviting corrections andresponses. Laudable though that policy is, I do not think that anewspaper enjoys any greater privilege of speech, expression andpublication, or immunity from prosecution, than the ordinary citizen.The freedom of the press is not a distinct fundamental right, but ispart of the freedom of speech and expression, including publication,which Article 14 (1) (a) has entrenched for everyone alike. It surelydoes allow the pen of the journalist to be used as a mighty swordto rip open the facades which hide misconduct and corruption, butit is a two-edged weapon which he must wield with care not to woundthe innocent while exposing the guilty. As Shakespeare put it:
"O! it is excellent
To have a giant’s strength,
But it is tyrannous,
To use it like a giant."
(Measure for Measure, II, ii, 107)
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I cannot accept the submission that the Attorney-General's decisionto indict a newspaper editor must be scrutinized with any greaterstrictness than a similar decision to indict any other citizen.
Mr. Kamalasabayson handed to us on a confidential basis, forperusal only by us – without objection from Mr. Goonesekera – thereports submitted to the Attorney-General by the two State Counselwho dealt with the two files.
In regard to the indictment alleging defamation of the Inspector-General of Police, the petitioner claimed that it had been filed eventhough the Inspector-General of Police himself had made no complaint.Mr. Kamalasabayson produced the complaint made on 20.1.97 by theInspector-General of Police – the day after the offending publication- denying the truth of the allegations against him. The petitioner saysthat he was not aware that such a complaint had been made, andthat it was not listed in the indictment. However, the undisputed factis that such a complaint had been made.
The impugned article alleged that the Inspector-General of Policehad abused his authority by interfering with the investigations into acase of sexual abuse of children. State counsel recommended anindictment because the Inspector-General of Police, the suspects, andthe investigating officer made statements denying such interference,while the petitioner had not provided any material to substantiate hisallegations. It is undoubtedly in the public interest to ensure that inall respects the conduct of the Inspector-General of Police is at alltimes above suspicion. State counsel observed that the article affectspublic confidence in the law enforcement process. I hold that theAttorney-General could properly have taken the view that this wasmore than a matter of vindicating the reputation of an individual, andwarranted an indictment.
The petitioner's other complaint is that the Attorney-Generaldecided to indict him in 1996 (in respect of the ''Ravaya" article of13.2.94 about the former Minister of Fisheries) despite two reports,dated 30.9.94 and 27.1.95, which, he says, establishes the truth ofthe article. Mr. Kamalasabayson submitted that those reports had notbeen sent to the Attorney-General, and that the petitioner himself madeno reference to them either in the statement he made on 24.2.95or later. (He also said that he has now called for them, and that they
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will be given due consideration.) However, although a perusal of thatstatement shows that the petitioner did say that official inquiries werethen proceeding in respect of corruption and irregularities in thatMinistry, the report made by State counsel does not indicate that anyinvestigations had been made about those inquiries.
A citizen is entitled to a proper investigation – one which is fair,competent, timely and appropriate – of a criminal complaint, whetherit be by him or against him. The criminal law exists for the protectionof his rights – of person, property and reputation – and lack of a dueinvestigation will deprive him of the protection of the law. But thealleged lack of a proper investigation, which resulted in those reportsnot being available to the Attorney-General was a lapse on the partof those whose duty it was to investigate, and not on the part of theAttorney-General. Those responsible for the investigation have notbeen made parties, and the petitioner's case has not been presentedon the basis of a defective investigation.
The impugned article contained a general allegation that the Ministryhad become the personal business of the Minister. It went on to makethree specific allegations: that a dredger worth millions had been soldfor Rs. 400,000 to a company owned by the Minister's son, that acircuit bungalow had been sold to the son, and that a Ministry vehiclehad also been given to him. The Minister and his son had deniedall these. State counsel ought to have asked for clarification whetherofficial inquiries were in fact pending about those matters – particularly,because two years had elapsed between the publication and theindictment. If there had been such inquiries, they might have revealedevidence which had a bearing on the truth of the allegations. Butdespite that lapse all that we have now are the two reports relevantto the first allegation. Even if I were to assume in the petitioner's favourthat the first allegation is true, yet we do not have any material atall suggesting that the other two are also true. At least in regard tothose two allegations, it cannot be said that prosecution was unjustified.State counsel expressed the view that the allegations affected not onlythe individual but the Ministry and the conduct of its affairs: there wasthus an element of public interest.
The net result is that the defects in the investigation have not beenduly challenged. It does not appear, prima lade, that the lapse onthe part of State counsel in not calling for further material has causedany prejudice whatsoever in regard to two of the three allegations.
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Errors and omissions do occur, and by themselves are not proofthat the impugned decision was arbitrary, capricious, perverse orunreasonable, or intended to interfere with the petitioner’s freedomof speech.
I do not regard the fact that four previous indictments had beenfiled against the petitioner as continuous harassment, particularlybecause three of the four were withdrawn, or not proceeded with,and of these, two withdrawals were in circumstances which do notsuggest any impropriety on the part of the prosecution; and, moreover,during the same period the Attorney-General declined to take actionon nine other complaints.
For the above reasons, leave to proceed is refused. We areindebted to Counsel for their assistance in this matter.
WADUGODAPITIYA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Leave to proceed refused.