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.
Sex and politics intersected in an explosive controversy that has gripped the United States as Professor Christine Blasey Ford gave evidence last Thursday to the United States Senate about a sexual assault perpetrated against her in the summer of 1982 by Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy, on the US Supreme Court.
The Republican-controlled Judiciary Committee of the US Senate initially refused to hear Professor Blasey Ford. However, public pressure forced the Judiciary Committee to reopen the hearing.
Ivor Archie has been the Chief Justice of Trinidad and Tobago (TT) for ten years and is a prominent judicial personality in the Caribbean. On 12 November 2017 the Sunday Express alleged that the Chief Justice had tried to influence Supreme Court Justices to change their state-provided personal security in favor of a private company with which his close friend, Dillian Johnson, a convicted felon, was associated. On 19 November the Sunday Express published another article alleging that Dillion Johnson was among 12 persons recommended for Housing Development Corporation units by the Chief Justice. On 4 December the Express reported that the Chief Justice, 57, was joined by Dillion Johnson, 36, while on official business abroad (Guyana). Photographs were published apparently showing Johnson lying in a bed and the Chief Justice sitting at the edge, backing the camera, on the telephone and another showing Johnson with a lanyard around his neck holding an identification card allegedly with the printed name of the Chief Justice. The Chief Justice claimed that the photographs were photoshopped.
On 29 November the Law Association of Trinidad and Tobago (LATT) appointed a committee to “ascertain/substantiate” the facts upon which the allegations made against the Chief Justice were alleged to be based. On 30 November the President of the LATT met with the Chief Justice and informed him that having regard to the seriousness of the allegations and his failure to respond, the LATT has decided to investigate the allegations to determine whether they are true or not. The LATT offered the Chief Justice the opportunity to respond to the allegations even though it recognized that it had no power to compel him to do so. It, however, mentioned that it intended to refer its report to the Prime Minister which falls within its statutory mandate.
It has long been recognized that the judiciary and its decisions are not and should not be immune from criticisms. It’s quite a different matter to attribute motives to the judiciary that can be construed as improper such as failing to consider or to implement executive policy. Two contrasting approaches were displayed recently by Mr. Aubrey Heath-Retemeyer, Deputy Director of the State Agency for the Recovery of Assets (SARA) and Minister Khemraj Ramjattan, Minister of Public Security.
Mr. Aubrey Heath-Retemeyer’s, in an interview by KN on June 22, accused the judiciary of resisting the government’s drive to reduce corruption because they are not willing to facilitate SOCU or SARA. He said that there is a “stark disconnection between the judiciary and the thirst of the nation for an end to corruption…I feel that sometimes the legal system here…doesn’t want to be in step with the honest desire of the law enforcement people (like SOCU) to ensure that they get the job done. I feel that if there was a greater sense of urgency and understanding on the part of the legal people and the system, they would be more willing to facilitate what SOCU or SARA would be doing.”
The offence of misconduct in public office carries a maximum penalty of life imprisonment. It is what is known as a ‘common law’ offence and is triable on indictment. This means that it is is derived from judge-made law of England which Guyana has legally inherited. And it is triable by jury. The maximum penalty suggests that it is regarded as a very serious offence.
While the offence can be traced back to the 13th century, a definition, given by Chief Justice Lord Mansfield in the 1783 case of R v Rembridge emphasized its importance: “…. first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehavior in his office; …. Secondly, where there is a breach of trust, fraud or imposition in a matter concerning the public, though as between individuals it would be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.”