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News and Views by Dionne Jackson Miller

pointed commentary on current affairs in Jamaica and the Caribbean

Month

May 2013

Highlights – Day 4 – Tomlinson v TVJ, CVM and PBCJ

Photo by DJ Miller
Photo by DJ Miller

Arguments in the case against three Jamaican televisions stations being sued for their refusal to carry an ad promoting tolerance towards homosexuality wrapped up Thursday. You can view the ad here.

The case is the first test of Jamaica’s new Charter of Rights which came into effect in 2011, and is therefore of great interest.

Justice Paulette Williams told the court at the end of arguments that “in an ideal world we would be able to meet and discuss and commit to paper our decision in short order.”

She said however that since the three members of the panel have additional court fixtures until the end of this court term, which ends on July 31, they will not be able to issue a ruling before the end of the term.

Following the six-week recess during summer, she said the court will be closer to giving a decision when the Michaelmas term begins.

Solicitor General’s Submissions

Solicitor General Nicole Foster-Pusey, Q.C. completed her submissions to the Court. The Solicitor General is involved in the matter as it is a constitutional case, and was not advocating for any side, but was presenting the results of her office’s research and conclusions on the legal issues which have arisen.

She looked at the use of the word “media” in section 13 (3) (d) in the Charter of Rights regarding the “right to seek, receive distribute, or disseminate information, opinions or ideas through any media.” You can read the Charter here.

She submitted to the court that the word is used to mean “the various means by which views can be disseminated, whether by electronic media, print, blogs, etc”

Justice Sykes: “Are you saying that (operators of) radio, TV, newspaper would have no greater right than ordinary citizens by way of expressing themselves?

Mrs. Foster-Pusey: That would be our position. The constitution provides the right to disseminate (information) through any media. It was felt that this would give broader protection (than a provision for freedom of the press). The media had wanted freedom of the press but it was believed that would be limiting. We believe freedom of dissemination of information is a sub-set of freedom of information.

Are the Defendants bound by the right?

The Solicitor General referred to section 13(5) of the Charter as an “interesting and new” (provision). This is the section that states that:

 “A provision of the Chapter binds natural or juristic persons if, and to the extent that it is applicable, taking account of the nature of the right, and the nature of any duty imposed by the right.”

“It is our view that it was the clear intention of the Joint Select Committee (of Parliament) that rights would be upheld not only by the State but by any other person or body,” the Solicitor Geeral told the Court.

“This is one of the major changes (effected by the Charter of Rights). The rights were previously solely of vertical

Photo by Salvatore Vuono at www.freedigitalphotos.net
Photo by Salvatore Vuono at www.freedigitalphotos.net

application (could only be enforced by citizens against the government).  It is now clear that to the extent applicable, that a person can enforce the rights not only against the state but also against other persons and organisations,” she said.

This has been one of the points argued during the case, whether the Charter now provides for so-called horizontal application, allowing one citizen now to sue another, or only vertical application. TVJ had argued that the Charter did not provide for horizontal application, or if so, that horizontal application did not apply to the rights involved in this case, freedom of expression and freedom to disseminate information.

“We believe that the nature of the right is such that it can be applicable to private persons having duties to each other,” said the Solicitor General, however.

Justice Sykes: (If) one private citizen  has a right not to speak, would it be fair to say another private citizen cannot compel this private citizen to speak and disseminate information? I may wish to get my message out and another private citizen may have other better means of communication. In what circumstances could I compel him to speak?

Mrs. Foster-Pusey: That’s the very delicate matter to be decided in this matter. We have not been able to arrive at a specific formula to be used by the court in balancing the rights.

Justice Williams: You are reluctant to identify any (over-arching) factor?

Mrs. Foster Pusey: It will be necessary for the court to arrive at an “all things considered” result.

Justice Sykes: Would it be a fair reading of section 13 (5) to say that there is no duty imposed by the right, then it is difficult to speak of a beach of the right, so if section 13 (3) (d)  (the right to disseminate information) imposes no duty on CVM and TVJ, how do we get to a breach?

Mrs. Foster-Pusey: I would think there are duties on every private individual. The press has been put in a particular position, (because of) the nature of the power they have. The extent of the duty and the manner in which the court

Photo by 9comeback at www.freedigitalphotos.net
Photo by 9comeback at www.freedigitalphotos.net

should interpret its exercise where a person is putting forward a right not to speak – that is the difficulty here.

The press has a duty because of their power, but they also have a right to say “I do not wish to speak in this matter, or to have my property used (by another) to speak.”

“The right of (TVJ and CVM) not to broadcast (something) is part of their right of freedom of expression,” she told the court.

The Claimant, she said, is also bound to uphold the rights of the television stations.

The thrust of the Solicitor General’s submissions is that both the television stations and Mr. Tomlinson have the rights to freedom of expression and freedom to disseminate information through any media. In the case of Mr. Tomlinson, this includes the right to have his message broadcast, and in the case of the television stations, the right not to broadcast something they do not wish to air. Both parties have a duty to uphold the rights of the other. The court will therefore have to carry out a balancing exercise to determine whose rights should prevail in such a situation.

She also submitted, however that while Mr. Tomlinson’s right to disseminate information had been restricted in terms of using the channels provided by the TV stations involved, there would be a “plethora of other media unaffected and in respect of which there’s no complaint.”

Justice Williams: Is there a place for pattern of behavior (to be considered in the balancing exercise)?

Mrs. Foster Pusey: I would not say so, the focus should be on what was sought, what was the impact, the facts before the court.

She also suggested that role of the media be considered in the balancing exercise, citing the South African case of Khumalo ( a much cited case in this matter) in which the Constitutional Court said that;

“In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.”

Justice Sykes: I see in the cases (reference to) a constitutional duty. How do we get there in light of a private business established for profit? How do we get to a duty, because if he wishes, he can get out of business.

Mrs. Foster Pusey: It is a fact to be taken into account in the balancing exercise, especially since it has been directly raised (for instance, by CVM).  (The court will have to) determine that issue and determine the weight to be placed on that issue.

PBCJ

Unlike TVJ and CVM, PBCJ is a state-owned entity. This means that a different provision in the constitution applies in respect of its duty to uphold rights and the relevant allowable restrictions to be placed that duty.

Whereas section 13 (5) that would be applicable to non-government entities speaks of natural or juristic persons being bound to uphold the rights set out in the Charter of Rights  “if, and to the extent that it is applicable, taking account of the nature of the right, and the nature of any duty imposed by the right” in the case of a government entity the relevant provision is section 13 (2) which states that government entities are bound to the extent:

“demonstrably justified in a free and democratic society.”

The Solicitor General pointed out that since PBCJ is prohibited by law from accepting paid advertising of the kind that had been offered by Mr. Tomlinson “it would be difficult to go further to say there has been a breach unless there is going to be a challenge to the legislation itself.”

Disclosure:  I work for TVJ

 

Highlights – Day 3 – Tomlinson v TVJ, CVM and PBCJ

 

 

 

Photo by nattavut at freedigitalphotos.net
Photo by nattavut at freedigitalphotos.net

On the third day of the Constitutional Court’s hearings of the claim against three Jamaican TV stations, TVJ, and CVM, both private entities and PBCJ, which is state-owned,  attorneys for CVM and PBCJ completed submissions, stressing their position that the stations had no duty to carry the video promoting tolerance towards gays submitted by the Claimant. You can view the video here.

 

The Claimant, attorney-at-law and gay rights advocate Maurice Tomlinson is suing the stations claiming breach of his constitutional rights to freedom of expression and freedom to disseminate ideas and opinions through any media.

 

CVM

 

In addressing the court, CVM’s lead counsel Hugh Small, QC,  started by referring to the report from the Joint Select Committee on the constitutional reform process that led to the enactment of the Charter of Rights. He noted that in several cases the Committee had used very clear language in indicating the changes that should be made to the constitution, and said this clear language was not used in the legislation. If so, he said, the arguments now being made (over issues like whether the Charter has horizontal application – that is, can be used by one private citizen to sue another for a breach of constitutional rights) would not be necessary.

 

He referred to a section of the report in which the South African constitution was discussed, as that constitution specifically provides for the role of the courts in developing the common law (law laid down in cases decided by the courts) and noted that the Joint Select Committee expressed the view that it is the prerogative of the legislature to develop the law. This attitude he linked with the outrage from regional governments over the Privy Council’s Pratt and Morgan decision, which held that after five years on death row, death sentences should be commuted to life in prison.

 

Reasons

 

Mr. Small pointed out that CVM makes money from advertising revenue and that if the station airs content that is offensive, this could impact revenue.

 

“CVM has aired programmes  in which homosexuals have been given a chance to air their views, it can’t be said that there is a pre-existing prejudice, the claimant himself has been interviewed on the station and participated in a programme on the station,” he told the court.

 

He made the following  additional points:

 

CVM has experienced negative audience reaction to such programmes;

 

CVM did not carry the video as a Public Service Announcement (PSA) as it did not meet the necessary criteria, that is, being a message carried free of charge in the public interest;

 

A PSA could have been construed as support for homosexual activities, some of which (buggery) remain illegal in Jamaica. He made a distinction between an ad such as that which was offered, and a discussion or interview programme in which there can be an exchange of views);

 

There was concern that the video could have been considered a covert attempt to encourage homosexuality;

 

The CVM board was influenced by the consideration that the pubic assumes that men who have sex with men engage in buggery, and that the ad therefore could reasonably have been construed as encouraging a criminal offence;

 

Legal advice had indicated that the CVM had a constitutional and common law right to decide with whom it would contract;

 

Clause 6 of CVM’s license requires it to operate in the public interest, and the Board was of the view that the ad could provoke widespread public discontent.

 

He said CVM conceded that the Claimant has constitutional rights, and said he went further, to assert that the constitutional rights were common to them both, and that freedom of expression includes the broadcaster’s right to exercise editorial control.

 

“So in effect we have two constitutional rights brought into competition under the same section of the Charter …if there are competing rights, can this Court make an order that explicitly (abrogates) CVM’s rights?” he asked adding that he could find no precedent for a Court making an order that would infringe the rights of one party.

 

Mr. Small also submitted that the use of the word “media” in the provision regarding the “right to seek, receive distribute, or disseminate information, opinions or ideas through any media” is not a reference to mass media. The word, he said, is being used as the plural of the word medium meaning any channel which an individual chooses to use, such as the internet.

 

Horizontal Application

 

Another member of CVM’s legal team Jerome Spencer argued the point of whether the Charter of Rights provides for horizontal application (allowing one private citizen to sue another for a breach of constitutional rights).

 

He submitted that “there is no dispute now” a private citizen can contravene fundamental rights and freedoms of another non-State (private) actor so that a claim for redress can be pursued, and says the issue is whether a right has been contravened, not who contravened the right.

 

He stated that when the relevant sections of the constitution are examined, it is clear that private citizens can be held to have infringed constitutional rights, and said the difference lies in the different restrictions imposed by the Charter on private individuals as opposed to government entities.

 

The restriction indicated in Section 13 (2) (b) for example provides that:

 

“…save only as may be demonstrably justified in a free and democratic society…parliament shall pass now law and no organ of the state shall take any action which abrogates, abridges or infringes those rights.”

 

On the other hand, section 13 (5), provides that:

 

“A provision of the Chapter binds natural or juristic persons if, and to the extent that it is applicable, taking account of the nature of the right, and the nature of any duty imposed by the right.”

 

PBCJ

 

Lead counsel Donald Scharschmidt, QC, noted that the Claimant has conceded that PBCJ does not accept paid

Photo by www.freedigitalphotos.net
Photo by http://www.freedigitalphotos.net

advertisements.

 

“I don’t know how the case for the Claimant proceeds after that, since it is an acknowledgement that PBCJ does not air paid advertisements,” he noted.

 

His submission was that the PBCJ Act which created the entity did not create any freedom of expression rights.

 

Saverna Chambers also spoke to the Court on behalf of PBCJ,

 

She referred to the functions of the PBCJ as mandated in the Act, namely that:

 

4 (2) Without prejudice to the generality of subsection (I), the Corporation shall provide public broadcasting services designed to promote

 

(a) the encouragement and propagation of positive values and attitudes within the society;

 

(b) the development of education and training;

 

(c) the dissemination of news, information and ideas on matters of general public interest;

 

(d) the vitality of democratic institutions;

 

(e) the protection of the environment;

 

V) the development of literary and artistic expression;

 

(g) the development of culture, human resources and sports;

 

(h) respect for fundamental rights and freedoms and the responsibilities of the individual to society;

 

She said that section 4 (2) (c ) has to be read in its entirety, emphasising the requirement that the material must be of general public interest.

 

She argued that the video did not fall into this category, which she said should be interpreted to mean matters that would interest the public “such as the budget debate.” Laughter broke out in the courtroom, which intensified when Justice Pusey suggested that she stick with his previous example of Champs as a matter in which the public is interested.

 

Justice Pusey also suggested to Miss Chambers that she re-phrase her submission, although he was actually suggesting a different position from that which she had taken.

 

“A better formulation of that might be to say that PBCJ has determined that its role is to deal with non-controversial  issues” and that the station was “not the place for advocacy,” he said.

 

Miss Chambers said the video does not fall within the category of a Public Service Announcement, that it does not fall within any of the types of programmes that PBCJ is mandated to air.

 

“The Claimant concedes that this is not an ad, but it is 30 seconds (long). We don’t do fillers at PBCJ, so where would it fall?” she asked.

 

Solicitor General

 

Solicitor General Nicole Foster-Pusey has started to address the court. The Solicitor General is involved as the case is a constitutional one, and her role is not to advocate for any one position, but to assist the court with the legal issues involved.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Highlights – Day 2 – Maurice Tomlinson v TVJ, CVM and PBCJ

The United States Supreme Court.
The United States Supreme Court. (Photo credit: Wikipedia)

Proceedings resumed on Tuesday with the claimant’s lead counsel Lord Anthony Gifford, wrapping up his submissions.

The case involves a lawsuit brought by Maurice Tomlinson, an attorney-at law and gay rights advocate, against three Jamaican TV stations that refused to air an ad promoting tolerance towards homosexuals. You can view the ad here.

Lord Gifford said that the US Supreme Court has already made it clear in their context that media houses do not have absolute editorial freedom, and invited the court to take the same approach here.

Justice Sykes: But how did they get to that conclusion?

Lord Gifford: Broadcasting, making use of restricted air space, under a government license, is different in the application of the free speech doctrine.

Justice Pusey: Is it that the application (of the doctrine in the US) is coloured by the US doctrine where they have had freedom of the press, and broadcasting developed after, while in our context we would not necessarily come to the same conclusion?

Lord Gifford: Freedom of expression, whether in media or by media, has always been protected.

Lord Gifford continued to stress the special place occupied by the broadcast media, although Justice Sykes questioned the distinction he was making between print and broadcast media.

Submitting that editorial freedom of media houses is not absolute, Lord Gifford suggested that the courts provide guidelines which the media houses could use to determine whether an ad (or other content) should be played or not.

He suggested that these factors could include:

  • The language of the constitution
  • The nature of the media outlet eg does the media house command the majority of the viewers in free-to-air television
  • The degree of intrusion on the entity’s airspace (ie the length of the submission)
  • Whether it offends any laws or regulations.

He said that once this test is applied to the video in question, the conclusion will be that the video should have been aired.

PBCJ

In relation to the claim against PBCJ, a state-owned entity that does not air paid commercials, Justice Pusey said he was having difficulty understanding how someone’s submission would come to be shown on the station.

Justice Pusey: Say it’s Champs time, if I want to send them a video saying my school is the best, do I just send it to them? (What if) the claimant was granted the right to have his video aired but others were not given that right?

Lord Gifford: You would look to the terms of reference for which PBCJ was set up. Once (the submission) falls within the guidelines, PBCJ would have to appreciate that the person is seeking to disseminate  ideas through the media so their constitutional rights are engaged. They would then have to look at the restrictions (that would allow them to refuse to air it).

TVJ’s defence

TVJ’s lead attorney Georgia Gibson-Henlin also made her submissions today.

She argued the following points:

  • Mr. Tomlinson does not have standing in the matter, that is, he is not entitled to bring the case to begin with;
  • The Charter does not give the claimant a right to sue TVJ directly in the absence of any action connected to the government;
  • The right of freedom of expression does not compel TVJ to carry the Claimant’s message;
  • The ad is not protected expression;
  • The right to disseminate information and ideas through any media is not a right to use private property of another person to disseminate one’s message;
  • The right claimed by the Claimant is inconsistent with TVJ’s right to freedom of the press and its right to exercise editorial control, revise edit of reject any ad or associate with any message or campaign.

Standing

TVJ is arguing that Mr. Tomlinson lacks standing, and that the case is not properly before the court and should not proceed. TVJ cites his own statement that:

“…as legal advisor to Marginalised Groups for the International NGO Aids Free World he has been working with JFLAG and other Caribbean LGBT groups to document abuse and other acts of violence against Caribbean Men who have Sex with Men (MSM) in an attempt to advocate for changes to homophobic laws and policies across the region.”

Mrs. Gibson-Henlin submitted that the Claimant is a what is known as a “poser” and a “tool.”

Mr. Tomlinson conceded that the ad was created as part of this campaign to change law and policy, and there was no harm to him resulting from the refusal to air the ad, she argued.

“He created the situation which gave rise to the claim. There was no threatened harm. The Claimant suffered no harm, and is being used as a tool by AIDS Free World, which has no standing and has suffered no harm in Jamaica.”

“He has not been threatened by any organ of the State and in fact the State has been helpful to him (when he was threatened by members of the public), it is difficult to see how he can allege that his rights have been infringed,” she told the court.

Justice Sykes: You are saying that this claim is not properly before the court?
Mrs. Gibson-Henlin: Yes, it should not proceed.

Applicability of the Charter to private action, that is action that has no connection with the government

This argument concerns section 13 (5) of the Charter of Rights which states that:

“A provision of this Chapter binds natural or juristic persons if and to the extent that it is applicable, taking account of the nature of the right and the nature of any duty imposed by the right.”

This is the submission on which Mrs. Gibson-Henlin spent most time and upon which she was most closely questioned by the judges.

This concerns the traditional so-called vertical application of the Constitution – that is, government to citizen actions, as opposed to the so-called horizontal application that this section is believed to have created, that is, giving a right of action to one private citizen against another.

She argued that the constitution is concerned with public law, and that the Charter of Rights has not changed that, that the purpose of the constitution is to protect the citizen against the exercise of state tyranny, and that the Charter creates no new rights and remains an instrument that creates public law rights and remedies.

Justice Pusey: So if a company has a policy of employment that discriminated against women progressing, a woman would not have any rights under the constitution? I have a feeling you would be the first attorney before the court (to challenge such a policy).

Mrs. Gibson-Henlin:  Section 13 (5) is not a blanket section. When someone makes an application, you would have to see if the right is applicable. That is, it is not of general horizontal application, it would have to be applied on a case by case basis.

She has also been arguing that there needs to be a nexus to a government action for the claim to be properly founded.

Mrs. Gibson-Henlin submitted that as the Charter is a part of a written constitution based on the Westminster model with  separation of functions of the organs of government, the judiciary, legislature and executive, it is a model which is in a category known as the top down, vertical or state action model (government to the people) as opposed to the horizontal application model (citizen to citizen) proposed by the Claimant.

Having taken the position that section 13 (5) does not create any general cause of action against a private individual or entity, Mrs. Gibson-Henlin said in skeleton submissions that:

“It may well be asked what is the purpose of section 13 (5)…It is not of general application- it is more in the nature of a threshold or application test. The court is required to determine in each case whether a particular right can be asserted against or is intended to burden the party against whom it is asserted. Further, some rights by their very nature can only be exercised by individuals, for example the right to hold a passport.”

Justice Sykes; Nothing in the Charter compels the conclusion that a pre-condition to 13 (5) is State action.

Mrs. Gibson-Henlin: The answer is in the entire structure of the document (the Constitution). The primary prohibition is in relation to organs of the state.

Justice Sykes; But experience has shown that private entities can assume sufficient power in a state so as to infringe an individual’s rights.

Mrs. Gibson-Henlin: Chapter 3 does not have general horizontal application. It may be open to a litigant to argue that some provision has horizontal application, and it is my submission that section 13 (3) (c ) (the provision dealing with freedom of expression) does no have direct horizontal application.

Is the ad a form of expression that is protected under the Charter?

Mrs. Gibson-Henlin said that not all forms of expression are protected. If a form of expression incited violence or promoted an illegal activity it would not be protected, for example.

She argued that where tolerance campaigns had been attempted before, there had been violence as a result.

Does the Charter compel TVJ to carry Mr. Tomlinson’s message?

Mrs. Gibson-Henlin argued that the Charter does not give the claimant the right to force TVJ to carry his message.

She relied here on a case called Gay Alliance Towards Equality v Vancouver Sun, where a homosexual group

Distributing copies of the Canadian Charter of...
Distributing copies of the Canadian Charter of Rights and Freedoms. (Photo credit: Wikipedia)

had alleged that a newspaper refused to publish an advertisement. The Canadian Supreme Court held that:

“(the newspaper) reserved to itself the right to revise, edit, classify, or reject any advertisement submitted to it for publication…a newspaper also has the right to refuse to publish material which runs contrary to the views which it expresses. A newspaper published by a religious organisation does not have to publish an advertisement advocating atheistic doctrine.”

Does the Charter give the claimant a right to use TVJ’s private property to disseminate his message?

Mrs. Gibson-Henlin argued that it does not. here she relied on the case of New Brunswick Broadcasting Co v CRTC where a two-year license was issued to an entity which owned newspapers, instead of the five-year license allowable. This, it was alleged, deprived the appellants of their right to freedom of expression. The Court of Appeal held that:

“The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint…It is not a freedom to use someone else’s property to do so. It gives no right to anyone to use someone else’s land or platform to make a speech, or someone else’s printing press to publish his ideas…”

Conclusion

“It is clear that what was going on was a march from media house to media house to set in train the exercise of coming to court,” she told the court.

Justice Pusey: But that’s what activists have done since time immemorial. The court is more concerned with whether there is a right in law, was the right infringed, and whether there is a remedy.

Mrs. Gibson-Henlin: I urge the court to recognize that the court is asked to look for harm, not someone setting up a particular agenda to achieve a particular outcome.

CVM’s Defence

CVM’s lead counsel Hugh Small began his submissions during the last half hour of the court sitting. He used the time to set the stage for what is to come, declaring that he will be submitting that the court cannot grant Mr. Tomlinson relief if in so doing CVM’s rights are infringed.

He said that nothing that will be said is a denial that Mr. Tomlinson also has rights, and that CVM operates a (media) business on the premise of freedom of expression.

He indicated that he will be asking the court to recognize that the constitution does not permit the Claimant to assert his constitutional rights to the extent that it will prejudice the constitutional rights of CVM, and that if the court grants the relief sought by the claimant, that relief will abrogate CVM’s right to exercise editorial control over the content it distributes, freely use its own property and freely decide with whom it will contract.

In what is likely to be an interesting aspect of his submissions, Mr. Small also said he will be looking at the report of the Joint Select Committee of Parliament on the Charter of Rights which exhibited what he called a

“pre-occupation to limit the role of the court and the application of chapter 3 (the chapter of the Constitution dealing with fundamental rights) to the court, and the right of the court to develop the common law.”

Mr. Small said this was:

“one of those long shadows cast over public life because not everybody accepted the developments in Pratt and Morgan (the case in which the Privy Council held that after five years on death row, a convicted murderer’s sentence should be commuted to life in prison).”

As I mentioned in my post about the first day’s proceedings, which you can read here, Mr. Tomlinson is seeking:

  • a declaration that refusing to air an ad promoting tolerance for homosexuals breached his constitution rights to freedom of expression and freedom to distribute or disseminate information, opinions, or ideas through any media;
  • an order for TVJ and CVM to air the ad in exchange for the standard fees;
  • damages.

Highlights – Day 1 – Maurice Tomlinson v TVJ, CVM and PBCJ

DJ Miller Photo
DJ Miller Photo

The case, which I first wrote about here, started in Jamaica’s constitutional court today. Mr. Tomlinson is seeking

  • a declaration that refusing to air an ad promoting tolerance for homosexuals breached his constitution rights to freedom of expression and freedom to distribute or disseminate information, opinions, or ideas through any media;
  • order for TVJ and CVM to air the ad in exchange for the standard fees;
  • damages.

Here’s a summary of the major issues and proceedings  from the first day:

The 30-second spot, dubbed the “Love and Respect video”  by the claimant, and which can be seen here, was shown to the court at the start of the proceedings.

Lord Anthony Gifford, lead counsel for Mr. Tomlinson, instructed by Anika Gray, submitted that the video was dignified and restrained. He said that only a very intolerant person would take exception to it.

He said the language of the new Charter of Rights and Fundamental Freedoms, which only came into effect in 2011, indicated that parliament intended for the rights outlined therein to prevail unless there were limits that could be demonstrably justified in a free and democratic society. NB That issue of what can be “demonstrably justified” is a key element of the Claimant’s arguments, the argument being that the refusal to play the ad was not be demonstrably justified.

Photo by idea go www.freedigitalphotos.net
Photo by idea go
www.freedigitalphotos.net

Not only were Mr. Tomlinson’s rights limited by the TV stations, Lord Gifford argued, but the limits imposed did not meet the test of that which could be demonstrably justified in a democratic society.

Another important issue is whether the television stations TVJ and CVM, as private entities, are bound by the Charter in this situation. That argument of course does not arise with PBCJ, which is a government entity. This relates to the argument that charter extends horizontally (citizen to citizen) to bind private citizens as well as vertically (government to citizen), that is, binding government.In relation to PBCJ, the claimant is arguing that as a public authority, PBCJ had a duty to uphold the constitution, and that furthermore, the PCJJ Act mandates the agency to broadcast information on matters of general public interest, and to promote respect for human rights.

But it was the status of TVJ and CVM as private entities that attracted a lot of attention from the judges. Here’s a sampling of their questions on the issue.

Justice Sykes: It makes no difference if it is a religious or non-religious broadcaster? Such a broadcaster  would be bound to broadcast a message contrary to his principles, that broadcaster can’t object?

Lord Gifford: (He can object) only with good  and sufficient reason. The balancing exercise involves  balancing of rights, both sides have rights.

Justice Sykes: Are you saying that they (the TV stations) have to contract (with people who want to place ads)?

Lord Gifford: I am saying they may have to contract.

Justice Sykes: Are you saying that private broadcasters have to provide reasons (for their decision not to enter into a contract with someone to place an ad)?

Lord Gifford: This is a constitutional right. If you are going to cut it off, you have to explain why.

Justice Pusey: Then, the right to free speech means that another person doesn’t have the right not to speak?

Lord Gifford: Yes, they do.

Justice Pusey: You are using the right as a sword, so an individual becomes an advocate for whatever someone else wants to say.

Lord Gifford: This is a paid advertisement. You are not adopting what they want to say.

Justice Pusey: If I have a radio station to play reggae music, and you have an ad contrary to that, I don’t have the right to say I don’t want your country and western ad?

Photo by Salvatore Vuono www.freedigitalphotos.net
Photo by Salvatore Vuono
www.freedigitalphotos.net

Gifford: You might have the right to refuse, the balancing exercise might come out differently.

Justice Williams: So freedom to disseminate is also freedom to disseminate it to as many people as possible, for example in prime time (television)?

Lord Gifford: Yes, television is a powerful medium, dissemination in the constitution has a meaning, it turns what might have been a passive right into a positive right.

Lord Gifford argues that CVM and TVJ do have a duty under the Charter of Rights to air the ad.  He maintains that in this case the position of TVJ and CVM is virtually indistinguishable from that of state entities, as they command the majority of the free-to-air TV audience, they are operating under a government licenses, and they have been given control over what is a public resource, that is the airwaves.

He argues that in the case of mainstream media, they wield significant power, and raised concerns about them excluding certain areas of public debate.

Justice Pusey: In an open market, the market will punish them.

Lord Gifford.: Not necessarily. Minority views, unpopular views also have to be heard.

Justice Sykes: You are proposing that every refusal (to air an ad) is a restriction (on constitutional rights) and then you have to go through the steps to see if the restriction is permissible?

Lord Gifford: That’s what the constitution says.

There was also quite a bit of discussion about whether the size of the media houses involved mattered or whether the principle as elucidated by Lord Gifford would bind all media houses. He began by arguing that size was important but later conceded that it was not.

One other area of Lord Gifford’s submissions was directed at countering the reasons given by the stations for not airing the ad. (NB – reasons were given at a later date, after discussions with the stations about airing the ad had ceased.  The reasons were given in affidavit evidence to the court).

For example, in relation to CVM’s position that the station was concerned that airing the ad would be viewed as an attempt to promote homosexuality, he stated that the ad did not promote homosexuality.

In response to the concern that the ad could be seen as promoting a criminal act (buggery), Lord Gifford submitted that it is not illegal to be a homosexual and also stated that the ad showed an auntie showing love for her nephew, and could not be seen as promoting a criminal act.

He also said that it was “hard to swallow” the argument that the video would cause so much offence that advertising revenue would be affected, especially since the station had aired other programmes about homosexuals.

Tomorrow: Lord Gifford will have another half an hour to wrap up his submissions and then the defendants will begin to make their submissions.

Disclosure: I work for TVJ

In Praise of Reports and Enquiries in Jamaica

Image courtesy of   nixxphotography at www.freedigitalphotos.net
Image courtesy of
nixxphotography at www.freedigitalphotos.net

ja blog dayIt’s become fashionable in Jamaica for us to dismiss reports and enquiries as a waste of time and money.

“Let’s move on,” we like to cry.

“We all know what happened,” is another frequent – and erroneous – statement.

We actually all don’t. Some of us undoubtedly do. But rumours and veranda talk won’t help us as a nation. Forensic, dispassionate,  analytical assessments of events and conditions in our country is what we really need, both as a basis for change, and as critical contribution to the annals of our history as a nation. This, whether we are talking about the 2010 Tivoli operation, the treatment of our children at Armadale, or how young, poor Jamaican men are treated by the security forces.

Take for instance, the very important report just produced by INDECOM, the Independent Commission of Investigations, called “Safeguarding the Right to Life: Issues from investigations of Jamaica’s Security Forces in 2012.”

Most people will never read it, will never be aware of the extremely serious concerns raised by INDECOM about the ways in which our security forces interact with those in custody and the mentally ill, and yes, I would bet you that many of those same people will say, from a position of pure ignorance, that the report was a waste of time. It most assuredly is not.

Here are three important issues from the report:

Issue 1 – The Fleeing Felon

The “fleeing felon” law (as laid down in case law) states that it is justifiable for police to kill persons suspected of committed felonies if they are running away and there was no other way to catch them.

The distinction between felonies and misdemeanors is an arcane one, now abolished in Britain, but as with so many other laws, still on the books in Jamaica. The distinction, INDECOM says, is that in the case of felonies, the state can forfeit the property of the offender, but not in the case of misdemeanors. On such a basis, one’s life can be forfeited by running away from the issue 1 – police!

The report says “in a case investigated in 2011, the police suspected that the occupants of a car had committed a felony. Their suspicion was based on insufficient information, they were mistaken. Sadly, the occupants ran from the police, one of them was shot and killed.”

INDECOM suggests that the fleeing felon law is incompatible with Jamaica’s new Charter of Rights, and that therefore the police should be wary of using force to arrest someone running away. At the same time, INDECOM points out that failure to use  deadly force “when lawful and necessary” may result in the constable being held to have neglected his duty if someone is hurt by the feeling suspect.

Recommendation

INDECOM recommends that instead, Parliament should pass a law setting out the circumstances in which reasonable force can be used in such situations.

Issue 2 – deaths of mentally ill persons when in confrontation with the security forces

INDECOM reports that in 2011, six people believed to be mentally ill were killed by the police. In none of these cases, INDECOM said, did the police employ any special measures. Seventy-five percent of the cases investigated from  2005-2012  ended in fatalities.

“In the majority of cases, police impatience contributed to an escalation of the  situation with the final result being the killing or injuring of the mentally ill person. This is a breach of the JCF (Jamaica Constabulary Force) procedures and in extension a breach of right to life.

In a significant number of cases, the victim posed no obvious, or immediate threat to the police or citizens yet the interaction with the police led to the victim’s death or injury,” the Report said.

Recommendations

INDECOM recommends that training programmes and refresher courses on dealing with the mentally ill be provided for the police; that within 12 months, all stations and response units be equipped with tasers; and that there be at least two medical response teams in each region including police officers specially trained to deal with the mentally ill, especially in rural areas, and that such teams be on call 24/7.

Issue 3 – Death in Police Custody

Image courtesy of renjith krishnan at www.freedigitalphotos.net
Image courtesy of renjith krishnan at www.freedigitalphotos.net

Following a complaint about the Port Antonio police station, INDECOM reported that there had been five deaths there in police custody between 2005-2009. Further investigations nation-wide indicated that there had been at least 36 deaths in police custody between 2005 – 2012. Added to the numbers who died in the custody of the correctional services, at least 12 people died in state custody every year.

INDECOM states that “all persons dying in custody were male and of Jamaican nationality. The men were generally of poor social background and general lack of family support. Some of the deceased were remanded pending the outcome of a psychiatric evaluation, so in essence they were displaying elements of mental illness.

“During the period of our study, the majority of the persons who died in custody suffered from a mental illness.”

INDECOM also raised serious concerns about the way in which mentally ill people are treated once taken into custody, with extremely poor quality accommodation, and infrequent monitoring, noting that:

“The mentally ill persons who died in custody were all kept in inhumane and inappropriate conditions. Where cells are reserved for mentally ill persons, they are, more often than not, the worst cells. At some stations, the mentally ill persons shared cells with other inmates.

“In all the cases of mentally ill persons who committed suicide, there was infrequent or inadequate monitoring. In 25 per cent of the cases, death was by apparent suicide…

“In the cases where death was caused by injury or illness, the victims had complained prior to death, but their complaints were not addressed.”

INDECOM recommends additional training for police in assessing people who potential suicide risks, basic training for all officers doing station duty in dealing with the mentally ill, ensuring treatment for those at risk, properly monitoring cells in which mentally ill persons are kept.

NB the Police have said the number who died in police custody was 29 not 36, that some died of natural causes (which was reported by INDECOM) and that training to deal with the mentally ill is already in place (INDECOM outlined what is in place.)

The fact is, we are fortunate now to have institutions, both governmental as in the case of INDECOM and the Office of the Children’s Advocate, as well as non-governmental organisations, as in Jamaican for justice and Amnesty International, doing in-depth investigations of our institutions of government and how we Jamaicans are treated by agents of the state.

Veranda talk is not the basis for legislative change and policy developments. Reports from agencies like INDECOM, the Armadale Commission of Enquiry and the upcoming Tivoli Commission of Enquiry can provide such a basis. What we on the verandas need to do is channel our energy into insisting that the work done is honoured, that the important recommendations made are implemented, and that lasting, real change results.

Announcing: Jamaica Blog Day – May 23, 2013

Announcing: Jamaica Blog Day – May 23, 2013.

via Announcing: Jamaica Blog Day – May 23, 2013.

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