In English law, fair comment on a matter of public interest is allowed. Generally, it guarantees the freedom of the press to make statements on matters of public interest, as long as the statements are not made with ill-will, spite, or with intent to harm the subject of the comment. For decades, English courts have placed a higher burden on public figures to prove defamation, which includes both libel and slander. This is based on the view that if a person chooses public activity, that person must expect a higher degree of public scrutiny. For example, it is hardly likely that an English court will countenance a defamatory intent against a public figure where an allegation of conflict of interest is made on facts which are essentially true but could be capable of a more generous interpretation.
Fair comment is an ancient common law (judge made law) defence. But it was replaced in the Unites States in 1964 by a defence created in the case of New York Times v Sullivan in which the US Supreme Court decided that actual malice has to be proved to establish defamation. Since it is very difficult to prove actual malice in a journalist or a politician in the cut and thrust of journalism or politics, public life in the US has been largely liberated from the fear of defamation. While the defence of fair comment remained in the U.K. it was increasingly found to be too restrictive for adequate scrutiny of public officials. The courts of the UK have never adopted New York Times v Sullivan but began to test a more liberal approach to criticisms of public officials.
The statement issued by the Bar Council of the Guyana Bar Association during last week quoted a dictum of the Chief Justice (ag) in the case of Attorney General of Guyana v Dr. Barton Scotland, Mr. Bharrat Jagdeo and Mr. Joseph Harmonas follows: “I hold that the NCM [no confidence motion] was carried as the requisite majority was obtained by a vote of 33:32. The President and the Ministers cannot therefore remain in Government beyond the three months within which elections are required to be held in accordance with art 106(7), unless that time is enlarged by the National Assembly in accordance with the requirements of the said art 106(7).”
President Granger responded at a political rally at Vreed-en-Hoop, that he remains President until a new president is sworn in. The President made no reference to elections. Minister Harmon clarified on Friday afternoon that a date will be fixed for elections when the court cases are completed. He gave no indication that the March 21 deadline for the Government to remain in office will be adhered to. It therefore appears that the Government intends to remain in office, even after March 21, if the cases are not over, which is very likely. After March 21, the Government will be illegal. It will not be entitled to hold office, not entitled to make decisions, not entitled to enter contracts, not entitled to convene the National Assembly, not entitled to pass laws and not entitled to fix a date for elections.
Divided societies like Guyana suffer from a phenomenon whereby historic events which, when they occurred, gave rise to allegations of ethnic bias, never seem to go away. The West Indies Federation, which lasted from 1958 to 1962, is one such. It is an historic event which is hardly relevant to contemporary Guyana today. Yet the debate on Jagan’a attitude to the Federation rages, as if the event occurred yesterday, and not more than 50 years ago. It is contextualized to the current ethnic controversies, one of which is to seek to continually paint Jagan as a racist, or at least to allege that he was motivated by ethnic considerations. His role in the establishment of the University of Guyana has become another. But that is for another time.
An editorial in the Stabroek News of December 19, 1986, on ‘Regional Integration’ stated that ‘…others, notably Eusi Kwayana (then Sydney King) attributed Jagan’s opposition [to the Federation] to his unwillingness to be swamped in a predominantly African grouping. C.L.R. James is also reported to have made a similar assertion. In response to the Stabroek News editorial, Jagan replied as follows:
Inspired by events that were occurring in the wider world and influenced by progressive views while he was a student in the United States, Dr. Cheddi Jagan returned to Guyana in 1943, then British Guiana, intent on becoming politically involved on behalf of the poor and disadvantaged. He chose the trade union movement as an entrance point. Ashton Chase and Jocelyn Hubbard, both trade unionists, were sought out to join with him and Janet Jagan to form the Political Affairs Committee (PAC) on November 6, 1946, as a study and discussion group. Branches emerged in various places including Kitty, Buxton and Enmore. My father, Boysie Ramkarran, joined the Kitty Group in 1947. Ashton Chase, at the 50th Anniversary celebrations of the PAC said that my father was the Secretary of that group. Eusi Kwayana was active in the Buxton group.
Amidst unrest and great and increasing poverty in the Caribbean in the 1930s and 1940s due to the Great Depression and drop in the price for sugar, the bauxite workers went on a long strike in 1947. In 1948 the successful Teare strike of transport workers took place followed by the Enmore strike of sugar workers. Having already won a seat in the Legislative Council in 1947, these events, and in particular the Enmore strike, motivated Cheddi Jagan to speed up the establishment of a political movement to struggle for universal adult suffrage, social justice and independence.