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| Sunday, 13 February 2005 |
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Features |  |
| News Business Features Editorial
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The case of Theja Gunawardhana D. N. Pritt who defended Theja Gunawardhana, publisher of a weekly paper called Trine in a landmark libel suit filed against her by the Kotelawala Government in the newly Independent Ceylon, talks about the case and the remarkable qualities of a woman who has done much to raise the standard of life and education among the underprivileged, in his autobiography titled 'The Defence Accuses. I then went to Colombo to defend Theja Gunawardhana. She was a remarkable woman, and her case was equally remarkable. A member of the upper ranks of Ceylonese society, she is quiet, cultured and domesticated; at that time she was doing invaluable work in the women's movement to raise the standard of life and education among the peasants, as well as in the Ceylon-China Friendship Society and the peace movement. It was not those activities which brought her into conflict with the law, but her editing of a small weekly paper called Trine, in which she devoted herself largely to exposing corruption and other scandals, which are unhappily not unknown in Ceylon. Trine had run into financial difficulties some time before the events involved in her prosecution, and she had sold it to Mr. S. W. R. D. Bandaranaike, who was substantially the leader of the opposition to the government of the then Prime Minister, Sir John Kotelawala. (Mr. Bandaranaike won the next General Election, became Prime Minister, and was cruelly assassinated; later his widow became Prime Minister). After the sale, Mrs. Gunawardhana remained a director of the company in which it was vested, and visited the offices of the paper from time to time; but the control was in Mr. Bandaranaike's hands. Some months later she felt financially equal to running the paper again, and found that Mr. Bandaranaike was willing to sell it back; and this was arranged. Then, in the last issue of the paper under Mr. Bandaranaike-it having been arranged that she should resume ownership and control the day after that issue came out-there came a very strong and plainly libellous attack on the Governor-General, Sir Oliver Goonetilleke, who prior to his appointment had been a Cabinet Minister in Kotelawala's government. Kotelawala decides to prosecute Goonetilleke had been libelled before, and had never taken any notice, and he did not show any signs of taking action about this attack; but Kotelawala himself announced in Parliament that the author of the article would be prosecuted and convicted! Conviction does not lie in the hands of the Government, but depends on the Courts; and Kotelawala spoke too soon, as we shall see. This announcement having been made, the Government could not but prosecute; and they selected Mrs. Gunawardhana as the defendant. Had they prosecuted Bandaranaike, who was in control of Trine, they might have succeeded; and had they chosen the person registered under Ceylon law as the responsible publisher they would certainly have succeeded, subject to the defence of 'truth', to which I will come. (Ceylon, like a good many other countries, compels every periodical publication to register some one individual who shall be responsible personally for everything that appears in the paper). But, as I said, they selected Mrs. Gunawardhana. They may well have believed that she had written the article; and if she had done she would be liable, if she could not prove truth, whether other people were also liable or not; but they certainly regarded this fearless, critical, and incorruptible woman as a great thorn in their flesh. Whether she did write it, I never knew; the Government never succeeded in proving that she did. Defence of truth The article was plainly libellous; if she were proved to have written it, she would be liable to heavy imprisonment and a heavy fine, unless she could establish the only available defence, namely that it was true and that it was for the public benefit that it should be published. This defence is one in which the burden of proof lies on the defendant; to succeed in it, one must establish, by strict proof, the truth of all the many assertions contained in the libel. The choice before her In that situation, Mrs. Gunawardhana could have pleaded guilty and hoped for a light sentence; she could have pleaded not guilty, contending that she had not written or published the article, but not asserting that the allegations in the article were true; or she could plead not guilty, 'justifying', as the lawyers phrase it, i.e. alleging that-if she wrote it-what was written was true and for the public benefit. To plead guilty was unthinkable for a woman of her character; she would not publish serious accusations of that kind and then run away. To plead not guilty, but not to justify, was something which she could have undertaken without any sacrifice of principle; for one cannot be accused of running away from a statement if one's case is that one did not make it. But such a course did not commend itself to her; she believed the accusations to be true and she wanted to prove them; moreover, if this defence alone were set up, she would never be allowed by herself or by her counsel, to say a word in support of the charges-not even in cross-examination. Thus, really, the only course which she could allow herself to take was 'justification'. For such a bold defence, involving perhaps many weeks of trial and hundreds of witnesses, she and her advisers thought that I was the proper counsel; and it was possible to pay proper fees. So I went out to Ceylon to defend her, having as my junior a member of the long-established Muslim community in Ceylon, named Isadeen Mohamed, one of the ablest juniors with whom I have had the pleasure of working in any country. My wife came out some time later to join me. The Government also had its difficulties, apart from the problem I have mentioned as to who should be chosen as defendant. The case fell, under Ceylon procedure, to be tried before a jury, and the Government feared that a jury might decide against it; so it invoked a provision in the code to the effect that cases which "by reason of civil commotion, disturbance of public feeling, or any other similar cause" are thought to be "appropriately triable" before three judges may be ordered so to be tried without a jury; and it obtained an order to that effect from the Court. The Government was also reluctant to have the ordinary preliminary proceedings, in which the defendant might have obtained various advantages; to get out of that difficulty, it used an old procedure called 'information'. Our strategy When I reached Ceylon, I found the position as I have described it above; and I found my quiet and gentle client determined that the case was to be defended by the most vigorous justification possible. I was, she told me, never to apologise for a syllable or a comma, nor to express regret, or indeed anything but a determination to prove up to the hilt the charges she had made; and I was not to worry for an instant about the risk she was running of imprisonment, and in particular of imprisonment for a much longer term than would be imposed if she did not "justify". Her only concession, if it was a concession, was that I could seek to prevent the prosecution from proving that she had written the article. I was at the same time being pressed by her husband, a gentle and affectionate man in weak health, who has since unfortunately died, and indirectly by her mother, to do all that I could to keep her out of prison. It would seem impossible to satisfy all these demands; but it will be seen that I did so. Advantages of cross-examination I had the advantage that I was able-under Ceylon procedure, which on this point was the same as the English-to put to any prosecution witness in cross-examination any part of the charges made in the alleged libel, and ask him whether to his knowledge they were true. I was thus able to work all the time towards proving justification (the main burden of which would of course come only when the defence had to call its witnesses) and at the same time to carry out the more passive operation of seeing to it that the prosecution should not prove that my client had written or published the libel. We of course fought the Government on all points, and we contested both their right to have a trial without a jury and their right to proceed by information. After a long and learned argument on these two points, we lost on both of them; in the result, these defeats were a benefit to us, for we achieved an acquittal on the facts. To be continued |
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