Gordon Robinson | Long road to press freedom in Jamaica | On point
Recent events compel me to return to the controversial issue of freedom of the press.
Unfortunately for the readers (both), this isn’t the first or second time I’ve banged on this jarring drum. By now, most civic-minded citizens should know that in 2011, when passing the new Bill of Rights, Parliament specifically refused to enshrine freedom of the press as a constitutional right. The three-card political trick used at the time was to ask, “Why do we need specific freedom of the press if we have freedom of speech?” This caught many of us (myself included) off guard.
On December 8, 2019, (The press has to get over itself) I wrote:
“Let’s face it: freedom of speech is NOT freedom of the press. In addition to being able to express themselves, the press must have access to official information to guide their expression. The Access to Information Act, a ploy to deceive the media, effectively restricts media access to official information and would be useless if freedom of the press were constitutionally entrenched.
There is so much more to the degrading downgrading of press freedom in favor of free speech. Restricted access to information on possible abuses of political power is just one example. Furthermore, the press must be free to use this information, in whatever form, without fear of legal or political reprisals.
Freedom of speech, a cherished right (reinforced in the Charter by freedom of opinion) that was so effectively used by Jesus Christ to spread the Word around AD 30, is itself grossly diluted in countries imitating Merrie OldeEngland. These less wealthy countries have blindly adopted English common law’s elitist concepts of defamation, imposing on free speech practitioners the often impossible burden of defending the expression or literally paying the penalty. Skeptics Should Read Leon Uris’ Classic Docu-Novel QBVI.
In the United States, where freedom of the press is a constitutional right and freedom of expression is cherished in law and in practice, only matters of national security, plagiarism or obscenity (narrowly defined) can impede freedom of speech. When the aggrieved party is a public official, no defendant has to prove the truth of his opinion unless the plaintiff can prove malice (not just spite but any improper motive). So once the free press is not malicious (in law), it is free to be wrong and to be corrected or self-corrected without penalty.
UNDERSTAND THEIR ROLE
This would also be the case in Jamaica, even with our bastard governance of Westminster, if only media professionals understood their role as protectors of the governed by governors. If they did, they would be fighting hard (including in court) for the basic principle that public officials are the employees of every citizen. As such, reporting on any of them should, even under Westminster-style governance, be covered by a qualified privilege as valid as conversations between employers. Again, the malicious post cannot be protected in any universe.
Don’t argue, don’t fight
Let’s get together, we can all unite
So take these chains off our feet
‘Cause we’re gonna walk, we’re gonna walk
(walk, walk, walk)
in the street of freedom (everyone knows it)
August 21, 2021 (Protect freedom of expression), back to the topic:
“So what is ‘freedom of speech’? Like all constitutional freedoms, it was constructed as a protection against undue government interference and is simply defined as the right to express opinions without government coercion.
This essential protection does not only exist in the Constitution. Too often in Jamaica, the enforcement of constitutional rights requires Job’s patience, extraordinary courage. stubbornness and endurance (not to mention deep pockets), none of which are readily available to Jamaican journalists. Freedom of the press cannot be implied into any written constitution and no judgment of a court that deviates from ordinary constitutional text in an attempt to do so can stand the test of time. As Roe vs. Wade (which, after the hype is removed, can be recognized as a judicial extrapolation of the 14th Amendment’s rights to equality before the law and privacy which itself overturned decades of contrary statutory law and judicial opinion ), it will be subject to annulment by a differently constituted and philosophically contrary tribunal.
England’s judgments on constitutional law are almost useless in countries with written constitutions for the reason that England has no such creature. Every act of the British Parliament, including the 1967 law legalizing abortion, has constitutional effect.
Even Privy Council decisions from other Commonwealth countries, especially with constitutional clauses that do not exist in Jamaica, should be treated with caution. Decisions of the Privy Council on appeal from the Court of Appeal of Jamaica are legally binding on our courts, but in my view even that should change as part of comprehensive constitutional reform with the start of the Privy Council as Jamaica’s Court of Final Appeal. In summary: if you want a specific issue to be an enduring constitutional right and not a reversible judicial pronouncement, include it in your plain language constitution.
CANNOT DEPEND ON THE CONSTITUTION
But like freedom of speech, we cannot rely solely on the Constitution to protect freedom of the press, even after enshrinement. Press freedom must also be upheld on the boards of media houses and the boards of the Jamaican Press Association (PAJ). Where there is no constitutional right to freedom of the press, the accountability of PAJ/media bosses is even more crucial.
Recently, a popular Sunday columnist wrote a sensational opinion and feature piece that seems to have trampled national and individual cors. Social media lit up with “reports” a lawyer had written to the media house. The sensational tracks were removed from the online edition and the column has not appeared since. Whether the sabbatical is imposed or chosen is neither known nor relevant. The incident, rightly or wrongly, reminded me of the fearlessness too often evident in the gastrointestinal tracts of media bosses.
A decade-old blog post by the former Gleaner columnist Annie Paul said:
“…Trust me. There is nothing that frightens a Jamaican media entity more than the threat of a libel or defamation lawsuit. Just mention the word “libel” and editors will be reduced to shivering wrecks and trembling ready to throw freedom of expression out the window with the baby and his bathwater.
“What can we do but laugh at this absurd state of affairs?”
Annie, as a victim of the contagious media rush for appeasement, I find no humor in this grave flaw in Jamaican journalism. Unless personal or professional malice is established, I expect editors, editors and board members to protect journalism no matter who is offended by what is published. . Fear of libel awards has infected the media since the Tony Abrahams case of 1987 (2001 Privy Council decision). It’s time to look this bogeyman straight in the eye and say, as Brutus said to Caesar (in Latin of course), “Pishenzee Offenzee!” The media must not only recognize but engage in their true mission to expose government abuses whenever they occur. If the media do it, like the Washington Post and the New York Times did in the now famous Pentagon Papers case, he’ll be surprised how many of those swaggering braggarts cower and walk away. Or lose in court.
let me tell you people
United we stand divided we fall
Respect your brothers, sisters and all
Let’s not deal with illiteracy,
Do it smart
Until the media remembers its glory days (1970s to 1980s) when journalists’ opinions and sources were firmly defended without fear or favor, I will believe that we have no freedom of the press in Jamaica. Until PAJ acts as a functioning journalists’ union and defends journalists, journalism and “freedom of the press” from institutional vulnerability to attack by the rich, powerful or connected, I will continue to believe and to spread my opinion that there is no freedom of the press in Jamaica.
I can’t see clearly because I worked hard last night.
It must be a vision because there is no change in sight.
I see a big, big street where all the hands meet.
This must be Liberty Street;
Oh Lord, Liberty Street!
Ken Boothe is one of the finest pure voices in Jamaican history. He consistently produced chart-topping hits (from the 1960s through the 1970s), and in his heyday his live performances electrified audiences. I remember The Old Ball and Chain and saw him open a gig for the Chi-Lites. He brought the house down and set the bar high for international stars. His 1970 hit Liberty Street (produced by recording legend Leslie Kong) was the lyrical product of the brilliant Harris “BB” Seaton (lead singer of the harmony group the Gaylads). Ken is also one of the most humble and thoughtful patriots in the music industry and one of old BC’s favorites.
Freedom of the press begins, in theory, in constitutions and courts. But true freedom of the press is created, nurtured and protected by journalists and their bosses who are willing to speak the truth, the whole truth and nothing but the truth to power regardless of the consequences.
Peace and love.
Gordon Robinson is a lawyer. Email your comments to [email protected]