Legal updates and commentary
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.
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.
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.
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.”
Lead counsel Donald Scharschmidt, QC, noted that the Claimant has conceded that PBCJ does not accept paid
“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 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.
Disclosure: I work for TVJ