EDITORIAL - Absolute privilege for all
We are grateful to Senator Norman Grant for calling for a national debate on whether legislators should continue to enjoy absolute privilege - the freedom to make statements in Parliament without the possibility of being sued for damaging a person's reputation.
Senator Grant has suggested that legislators sometimes abuse the privilege accorded them to speak their minds freely, intentionally tarnishing the reputation of ordinary Jamaicans who have no legal recourse.
"We are almost 50 years after (Independence), and there was the need for balance to ensure that no one should use such a position and protection to attack someone that has no recourse," Senator Grant told colleagues recently while debating proposed reforms to the libel and defamation laws.
While this newspaper is not necessarily advocating the removal of absolute privilege from parliamentarians - because we believe it is essential to empower them to carry out their national duties - we are strongly of the view that the people should be given reciprocal power to scrutinise and comment on the performance of parliamentarians.
There should be a pact: on the one hand, the people allow parliamentarians unfettered free speech - even beyond constitutional limitations - while on the other hand, parliamentarians subject themselves to public criticism without scurrying for cover under the libel/defamation laws.
Indeed, we commend to readers a 1923 ruling by the Supreme Court of Illinois, United States of America, in City of Chicago v Tribune, advocating absolute privilege for citizens to criticise public officials.
The ruling by Chief Justice Thompson states, in part: "... Every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved, he shall have the right to speak his mind freely."
After nearly two years of reviewing the Justice Hugh Small Committee report on reforming the libel and defamation laws, a parliamentary committee, including members of the Upper and Lower Houses, last December recommended that parliamentarians and other public officials should retain the right to protect themselves from libel defamation. The committee members, now supported by the full House and Senate, have argued that there should not be a different standard for public officials and private citizens in defending against libel or defamation suits.
We maintain that there should be a different standard, that parliamentarians - and senior public officials, by extension - should facilitate good governance, accountability, transparency and the diminution of corruption by availing themselves to robust scrutiny and comment by citizens and the media, by extension, without using the libel and defamation laws as a shield.
In this regard, this newspaper continues to advocate the adoption/adaptation of the Sullivan principle in reforming our libel and defamation laws. In The New York Times v Sullivan, the Supreme Court's ruling recognised "the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials".
Under the Sullivan principle, the scrutiny of public officials, à la the Manatt-Coke commission of enquiry - without the personal abuse - could become the norm.
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