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.
On Wednesday last the public was treated to a brilliant and expansive lecture by the former Chancellor (ag) of the Judiciary and now Distinguished Jurist-in-Residence at the University of Guyana, Carl Singh. The subject was “The Constitutional Guarantee of Fundamental Rights and the Citizen. The lecture, to a packed hall and attentive audience at Herdmanston House, was the third in the series “Conversation on Law and Society.” Chancellor Singh started by pointing out that while citizens may not always be cognizant of what their right are, they are certainly aware that the Constitution guarantees them, which they are often prepared to aggressively defend. He related the story of a visitor to a hospital in Georgetown who was being prevented from entering because the visiting hours had come to an end. During the argument between the visitor and the hospital staff, the visitor loudly proclaimed that it was her constitutional right to enter the hospital to visit her relative!
Chancellor Singh explored a wide range of issues, not all of which can be examined here. A few are selected.
It takes a certain mindset for a person to believe that he or she has the right to determine what information, otherwise lawful, that the citizens of Guyana should receive. Inculcated among some media practitioners and political operatives during the 1970s and 1980s, and pursued with vigour and venom between 2001 and 2015, this mindset is clearly alive and well in Guyana. State-owned media has long been seen as a party asset to be utilized for the benefit of the Government and Party in office.
Given the opportunity to reject censorship, the Guyana Chronicle did the opposite. In justifying its failure to publish its own columnist, Dr. David Hinds, because it did not agree with the views he expressed on two occasions, it embarked on a paean to censorship in its editorial of April 20 entitled “The state newspaper.” It reiterated an earlier statement that “this newspaper is an arm of the state and will give primacy to the government’s agenda.” How is this different to the policy of the Chronicle during the eras mentioned above? The Chronicle is not an arm of the State. The State is merely a trustee of its owners who are the people of Guyana. I am a part owner of the Chronicle.
The view of the Opposition that a Member of the National Assembly can be prevented from speaking is nothing but weird. This battle was fought in England hundreds of years ago and was settled in 1689. Guyana must be the first country which inherited the British Parliamentary system in which this issue had to be fought all over again after more than three hundred years.
Despite all of this, the ruling of the Speaker that Minister Clement Rohee is entitled to speak has not found favour with the Opposition. APNU expressed its displeasure but the AFC, quite properly, said that they will accept the Speaker’s ruling. APNU appears to be interested in tabling a motion to challenge the ruling with a view to having it reversed. Whether it will persist with this course in the certainty that the motion will be defeated, having regard to the AFC’s position, is not now clear.