The Appeal Court today (19.06.2013), granted relief in writ application CA (Writ) 180/2012, filed by Thevanayagam Premananth, Editor of Uthayan Newspaper against the Jaffna Magistrate, Manikkavasagar Ganesharajah. The Writ application was taken up before Justice S. Sriskandaraja, President of the Appeal Court and Justice Malini Gunaratne. K. Kanag-Isvaran, PC with Viran Corea, Lakshmanan Jeyakumar and Niran Anketell appearing for the Petitioner (Editor).
Court was informed by the petition, that the Editor had received credible information of an apology tendered in Open Court on 27.06.2012 by the respondent Magistrate, to M. A. Sumanthiran, senior Attorney-at-Law and Tamil National Alliance (TNA) Member of Parliament, after he had pointed out that certain comments made by the Magistrate from the Bench condemning a speech made by him in Parliament, was inappropriate as it was covered by Parliamentary Privilege. After confirming the accuracy of the story, the Editor had caused its publication in the Uthayan newspaper edition of 28th June. The caption of the article in Tamil read: “Sumanthiran MP pointed out yesterday that the Court has no authority to criticise matters spoken of in Parliament”. The petitioner complained to the Appeal Court, that consequently, he was sent a letter that very evening through the Registrar of the Jaffna Magistrate’s Court, that he must appear before the Jaffna Magistrate in Open Court the very next day (29th June). The letter did not bear any case number but indicated that it was to give explanation regarding the news report. When the Editor appeared in Open Court with his lawyer, the Magistrate had berated him and he was told to tender an apology, claiming that he never tendered an apology. The Editor replied that if he was ordered to do so, he would consider it his duty to comply. On being prevailed upon, the petitioner then stated to Court that he was tendering an apology ‘as ordered by Court’. However, the Magistrate, dissatisfied with this apology, directed the Editor to turn around, face the public, and apologise as though of his own free will, stating that he was apologising of his accord, and not to state that he was ordered by Court to do so. The Editor, who could not do so honestly, had then turned around, faced the public and said, “We published a news item yesterday. However, the Learned Magistrate now says that he did not apologise to Mr. Sumanthiran. Therefore, I am apologising.”
The Magistrate had then instructed the Editor to disclose the source of the initial information, which he refused due to his obligation to protect confidential sources of information. This obligation is recognised in Article 5 of the Code of Professional Practice (Code of Ethics) of the Editors Guild of Sri Lanka, which was adopted by the Press Complaints Commission of Sri Lanka. The Magistrate had thereafter fixed the matter for 9th July and instructed the Editor to disclose his source and to show cause why he should not be charged for contempt of court on that date. It was urged to the Appeal Court, that for the reasons set out in the petition, the actions of the Magistrate were illegal, ultra vires and without jurisdiction, and that unless a stay order were granted, the petitioner would face grave harm and damage. After hearing counsel, the Appeal Court issued interim relief, preventing M. Ganesharaja, the Jaffna Magistrate from taking any steps to deal with the Editor on the basis that he had acted in contempt or to issue warrant for the arrest him till the Appeal Court case is concluded.
The Magistrate was issued notice by the Appeal Court and initially came to court with the Attorney General’s Department backing him. However he did not attend court to defend his actions when the case was taken up for final hearing today.
The Appeal Court considered the facts and the applicable law and ruled that the petitioner is entitled to the relief he has sought. A writ of certiorari was issued, quashing the Magistrate’s order to try the editor for contempt.