Wed | Jul 18, 2018

Gordon Robinson | The Fourth Power

Published:Sunday | February 18, 2018 | 12:00 AM
In this May 2, 2014, photograph, journalist Rohan Powell displays a shirt proclaiming the role of the media at a World Press Freedom Day Forum at the Knutsford Court Hotel in New Kingston.

Jamaica, constitutionally constructed as a political fiefdom with a justice system moving slower and less surely than a sloth with arthritis, must rely on free and independent media for protection.

Press freedom isn't yet enshrined in our Constitution, but the new Charter of Rights makes significant progress. In what MoBay residents might call a limited state of press freedom, the Constitution makes media publication of honest opinion a fundamental right from which no government can derogate.

The charter provides that it:

"... shall have effect for the purpose of affording protection to the rights and freedoms of persons as set out in those provisions TO THE EXTENT THAT THOSE RIGHTS AND FREEDOMS DO NOT PREJUDICE THE RIGHTS AND FREEDOMS OF OTHERS".

Don't even think the highlighted words somehow give constitutional effect to ordinary legislation or common law or waters down these new constitutional rights. It's still a fundamental principle that the Constitution's provisions are supreme. Section 2 mandates:

"... [I]f any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."

The umbrella words to the listed constitutional rights describe them as "the rights and freedoms of persons as set out in those provisions" so, it follows the proviso (not to "prejudice the rights and freedoms of others") refers to constitutional rights of others as enshrined in the Charter. Statutes can neither confer nor derogate from constitutional rights.

The charter's preamble places obligations on:

- The State to promote universal respect for, and observance of, human rights and freedoms;

- All persons to respect and uphold the rights of others RECOGNISED IN THIS CHAPTER (emphasis mine).

The same preamble also includes this important statement of principle: "All persons in Jamaica are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society."

These are brand new, 'criss', fundamental, epic constitutional provisions. This isn't political hyperbole, faÁade, trickery, or tomfoolery. THIS, in conjunction with an independent judiciary (impossible, in my opinion, without an independent Bar), and a free press are what stand between us and dictatorship in a nation with a de jure (Queen) and de facto (prime minister) monarch.

 

GUARANTEED RIGHTS

 

The charter goes further. It provides (subject only to constitutionally entrenched religious bigotry about marriage and buggery; the ability to amend; states of public emergency; or "as may be demonstrably justified in a free and democratic society") that the rights are "guaranteed" and no law can be passed nor can any State organ do anything "which abrogates, abridges or infringes those rights".

These aren't 'pyaaw-pyaaw' rights (apologies to Carolyn Cooper). They are OURS. No guy can 'fercolate' wid dem. The only restriction is that because these rights have equal force (i.e., all constitutionally entrenched), we can't rely on one if our action infringes another. Otherwise, they're 'guaranteed'. We free!

The following rights appear on the guaranteed list:

"(b) The right to freedom of thought, conscience, belief and observance of political doctrines;

(c) The right to freedom of expression;

(d) The right to seek, receive, distribute or disseminate information, opinions and ideas through any media."

Although this protection isn't extended to all news reporting (must qualify as 'information', which would exclude misinformation), it's pellucid that honest opinion published in any media, including newspaper, radio, TV, social media or online publication, receives the Constitution's full protection and can't be suppressed or threatened by anyone or any law.

To my mind, this raises Jamaican opinion journalism to the level of protection (1st and 14th Amendments) that United States media publications have enjoyed since the early 1800s, namely, unless a claimant can prove malice of some sort (including corruption of any kind), the days of gagging opinion by libel writ are over. Unfortunately, news reporters must still be careful regarding sources, and investigative reporters remain especially vulnerable.

In New York Times v Sullivan 376 US 254 (1964), an elected official in Alabama brought a suit alleging that he'd been libelled by a Times advertisement that included statements, some false, about police action allegedly directed against students participating in a civil rights demonstration and against a civil rights movement leader. The trial judge instructed the jury that such statements were "libellous per se" (no need to prove actual damage), and, for the purpose of compensatory damages, malice was presumed so that such damages could be awarded if the defendants published false statements about the claimant.

The US Supreme Court held (pages 279-283 of the 376 US report), over 50 years ago, that factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice" (improper motive; knowledge that statements are false; or reckless disregard for the truth) is alleged and proved.

Jamaican courts have been prevented from accepting the soundness of that reasoning because of our Constitution's colonially inspired conservatism that resulted in the exclusion of any trace of press freedom. In my opinion, the way is now clear for courts to look at opinion journalism in a different light and permit the free flow of honest opinion, especially about issues and affairs that have been widely disseminated in the public domain.

 

LEGAL IMPERIALISM

 

Another vestige of legal imperialism from Britain, a true monarchy, is the so-called 'sub judice' rule. Its principle (persons, especially media, shouldn't intentionally publish anything designed to prejudice pending court proceedings) is sound. But it has its roots in a broad-brush prohibition of British 'subjects' daring to comment on Her Majesty's court proceedings as if courts were sacred cows and not just an independent branch of government, whose duty is public service.

Insofar as it seeks to protect accused citizens' rights to a fair trial, again, its objective is sensible, but its application obsolete. In the 21st century, public opinion proliferates (and is available to anyone owning a

'smart'phone) unlike anything experienced or foreseeable when English judges created that archaic 'rule'. Today, many criminal-defence lawyers rush to the latest radio talk show or TV camera to proclaim clients' innocence.

Governments expressing concern that the judiciary should be 'accountable' can rest assured that vital defender of democracy is already constitutionally accountable to the Judicial Services Commission; the appeal process; and collectively, to the people of Jamaica they serve. The people's watchdog is a free and independent press. I wish to assure every Jamaican government that the judiciary isn't accountable to the executive or any member thereof. That would be an egregious conflict of interest between its duty to protect the public from governmental excess and that fallacious notion of accountability.

Is it possible for public opinion to prejudice a trial controlled by a judge who should ensure that members of the jury pool aren't affected and instruct them to ignore any such opinion when deliberating on the evidence? Worse, in Jamaica, where trials can take years to begin, such an inflexible rule smacks of the always inappropriate and now constitutionally forbidden muzzling of media opinion. Even in England, without a written constitution, much less constitutional freedom of opinion, a 1981 statute rendered the sub judice rule irrelevant to journalism and retained the prohibition only when "proceedings are active" and there's a "substantial risk" of prejudice. If English court proceedings are inactive for years (lol), as regularly happens here, there's no "cease and desist" order on public opinion during the lull. If social media has taught us anything, it's that it's time to let go of these colonial restrictions on public discourse and trust the judicial process.

US constitutional history progressed similarly to, albeit much faster than, ours. In the famous US Supreme Court decision US v Washington Post (1971) No. 1885, decided on June 23, 1971, (admittedly limited to injunctions preventing initial publication), Justice Hugo Black wrote:

"When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights ... . In response to an overwhelming public clamour, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe ... . In the First Amendment, the founding fathers gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the governed, not the governors. The government's power to censor the press was abolished so that the press would remain forever free to censure the government."

Purveyors of public opinion have a solemn obligation to utilise this limited new constitutional right fearlessly and fairly. We must train our minds to discard our biases when publishing opinion on public affairs. We must fight for the governed; never suck up to the governors.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.