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Parliament to repeal criminal defamation law

by Ravi Ladduwahetty

The Cabinet of Ministers has approved a proposal from Minister of Justice, Law Reform, National Integration and Buddhist Affairs W. J. M. Lokubandara to repeal the Criminal Defamation Laws. The Draft Legislation will be presented in May. However, the laws do not have retrospective effect.

Minister Lokubandara has told the Cabinet of Ministers in a Memorandum: "As an expression of the commitment of the Government to the freedom of the media, I recommend that the Penal Code be amended to repeal its Provisions on Criminal Defamation.

Since the civil law remedy continues to be available, a person subject to defamation may file a civil action for damages. An incidental amendment to repeal section 15 of the Press Council Law No. 5 of 1973 is also necessary. These amendments are not sought to be brought into operation with retrospective effect since the Attorney General has advised that such retrospective provisions would be inconsistent with the Constitution.

"This has been something that the media has been wanting for a long time and has been in my mind. Now it is up to the media to act with responsibility," Minister Lokubandara told the weekly Cabinet news conference at the Government Information Department auditorium yesterday.

Minister Lokubandara has proposed that -

In terms of our law, a person subject to defamation may either have recourse to a remedy of a civil action for damages or to seek a prosecution under the Criminal Law. The sanction of the Attorney General, however, is required for a prosecution for criminal defamation.

The offence of Criminal Defamation is recognised in Chapter XIX (section 479 to 482 A) of the Penal Code of 1883, the provisions of which seek to protect public figures from unfair character assassination. The penalty prescribed for Criminal Defamation is a term of imprisonment which may extend to two years and/or fine.

Section 15 of the Press Council Law, No. 5 of 1973 also makes reference to certain Criminal Publications including defamatory statements made under section 479 of the Penal Code.

Under the English Law, where both civil and criminal remedies are available for defamation, a criminal action can proceed only with the leave of court first being granted.

The guidelines developed by the English Court for a Judge to decide whether to grant leave to so proceed against newspapers are (a) whether there is a prima facie case (b) whether the liable is so serious that the criminal law has to be invoked and (c) whether the public interest requires the institution of criminal proceedings

A Committee appointed by the then Minister of Media Dharmasiri Senanayake in 1995, chaired by Mr. R. K. W. Goonasekera, to advise on the reform of laws relating to media freedom and freedom of expression has observed that although the requirement of obtaining the Attorney General's sanction under our laws would have had the same end in mind as set out in the English Court guidelines, certain recent instances of prosecution appear to have been influenced by other consideration.

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