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.
During the lifetimes of Cheddi Jagan and Janet Jagan, the PPP twice, unanimously, decided to support a two-term presidential limit. A PPP delegation in 1995/6 proposed to the Parliamentary Select Committee on Constitutional Reform that the constitution should be amended to provide for a two-term presidential limit. In 1999/2000, the same representation was made by the PPP to the Constitution Reform Commission. These public proposals reflected those unanimous decisions.
During the Ramotar presidency, Attorney General Anil Nandlall opposed the application by Richardson to deem as unconstitutional the amendment to the constitution that limited the presidential terms to two. Before Mr. Ramotar became president, he had publicly opposed the call for scrapping the two-term limit. He has welcomed the decision of the Caribbean Court of Justice (CCJ).
I will stay away from the continuing controversies between the current and past Attorneys-General. To coin a phrase, when elephants rumble, it’s the insects in the grass who get trampled. I will likewise stay away from the merits or otherwise of the Chief Justice’s decision ordering the Minster of Legal Affairs to bring the Act into force. It is likely to be appealed and the Court of Appeal will decide. But why is the Judicial Review Act important to the public?
There is an area of law called ‘public law.’ While much law notionally exists for the protection of the public, ‘public law’ more directly protects the rights of the citizen in his or her relations with the state and public bodies or authorities by holding them to account. The instruments used by the courts in public law are of ancient origin, initially directed against the King, and are called writs of certiorari – to quash a decision, mandamus – to order something to be done, prohibition – to prohibit an act and the lesser known, quo warranto – challenging the right to hold an office. The writ of habeas corpus – ordering the production of a body, is linked to these. They are called ‘prerogative’ remedies issued by courts on the application of citizens for ‘judicial review’ to enforce their rights against the state or public authorities. Currently, these are the only remedies available in public law.
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.