Here are a few of the human rights stories making news around the world that I find interesting.
1. Reparations could be a step closer for the indigenous Maya Achi community in Guatemala, three decades after hundreds were killed to clear the way for a dam to be built.
The Guardian reports that the Inter-American Development Bank (IDB) and the World Bank financed the construction of the dam and survivors have been calling for the institutions to pay reparations for years.
The fresh hope comes as US President Barack Obama prepares to sign a bill that will, among other things, instruct the World Bank and IDB to report on steps taken to implement the provisions of a 2010 reparations plan.
As Jamaicans continue to test the still new 2011 Charter of Rights and Fundamental Freedoms, we could see some intriguing cases before the Supreme Court this year, such as the issue of the undated Senate resignation letters, a challenge to the buggery law, and a test of the constitutional provision for the right to a healthy environment. Such cases are important in delineating the limits of a constitution and specifying the protection it offers.
The Undated Senate Resignation Letters
Former Senator Arthur Williams has indicated that he intends to pursue his claim that Opposition Leader Andrew Holness’s use of undated resignation letters to force him and Christopher Tufton out of the Senate violated his constitutional rights. Williams says the letters were intended to be used only in the event of Opposition Senators wanting to break with the party on the Caribbean Court of Justice. If the case goes to conclusion, we could see the court pronouncing on something that lawyers have been arguing over for years – what power, if any, do political leaders have to remove senators who they themselves appointed?
Williams has said he is seeking the following:
“ A Declaration that an undated letter of resignation and a letter authorizing the Defendant to date and use the same which had been signed by the Claimant were used by the Defendant other than for the purpose for which they had been given and therefore were unlawfully used and accordingly are void and of no effect.
A Declaration that based upon the Claimant’s stated position that he would not resign as requested, he had effectively revoked the said letters.
A Declaration that the very fact of requesting these undated letters of resignation from all persons to be appointed as Senators under nomination of the Leader of Opposition is contrary to Jamaica ’s Constitutional scheme.
A Declaration that the undated letters of resignation are void as being inconsistent with the Constitution by seeking to give to the Defendant the right or power to effect the resignation of the Claimant at the Defendant’s volition.
A Declaration that by using the undated letters of resignation for the reason that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party is inconsistent with the Constitution of the Jamaica Labour Party and the Constitution of Jamaica.
A Declaration that the use of the undated letters of resignation on the basis that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party contravenes the Claimant’s constitutional rights to the freedoms of conscience, association and expression protected by section 13 (3), (b), (c ) and (e) of the Charter of Rights.”
Those section of the constitution provide for
(b) the right to freedom of thought, conscience, belief and observance of political doctrine;
(c ) the right to freedom of expression;
(e) the right to freedom of peaceful assembly and association.
Challenge to Buggery Law
Then there is the challenge to the buggery law brought by Javed Jaghai. Jaghai is seeking a declaration that;
“The right to privacy in the Charter of Rights and/or the right to equality excludes private sexual activity between consenting male adults from being criminalized under the Offences Against the Person Act (sections 76,77,79) or a declaration that private sexual activity between consenting male adults are excluded from those sections of the OAPA as a matter of statutory interpretation;
An order that sections 76 and 77 of the OAPA will continue to govern non-consensual anal intercourse and anal intercourse with minors.”
The sections of the OAPA cited are:
76. Whosoever shall be convicted of the abominable crime of buggery, committed either with’ mankind or with any animal, shall be liable to be imprisoned & kept to hard labour for a term not exceeding ten years.
77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.
79. Any male person who, in pub!ic or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.
Right to Healthy Environment
There is also the possibility that within the context of the potential transhipment port development on the Goat Islands that environmental advocacy groups may seek to test the significance of Section 13 (3) (l) of the Charter which provides for:
“the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage.”
This is an interesting provision in the Charter. Environmental rights are regarded as many scholars as so-called third-generation rights (civil and political rights being first-generation rights, social, economic and cultural rights as second-generation) and there is debate as to the extent of their justiciability. Parliament’s deliberate inclusion of this provision in the Charter is therefore interesting, and I will be eager to follow a court case
“This is a landmark moment that will give the public the opportunity to see and hear the decisions of judges in their own words. It is another significant step towards achieving our aim of having an open and transparent justice system.”
“I and my fellow judges welcome the recording of the proceedings. We believe it will help assist understanding of the way in which the courts work and enable the public to see the way justice is delivered in an even more open and transparent manner than at present. I look forward to people to seeing the court as it actually works…”
I look forward to the day when cameras and audio recording equipment are allowed into Jamaican and other national courts of the Caribbean. In anticipation of the flurry of responses about the need to fix bathrooms, buy law reports and repair roofs and air conditioning before buying cameras, let me say I don’t think we have to wait until the government can afford to broadcast court proceedings, whenever that may be.
National news organisations would be panting at the opportunity to televise some major trials. Procedures could be worked out to avoid having lawyers and judges tripping over cameramen. Arrangements could be made for a single camera to record, with the tapes to be shared with all interested media houses, or perhaps to provide access via web streaming. Protocols can also be worked out in terms of what may and may not be televised, as has been done in the UK.
Newsrooms will have no interest in televising the vast majority of court proceedings. However, trials of significant public interest and those that involve important issues of law, constitutional or otherwise, should be televised, for transparency and better understanding of the court procedures.
Our traditional methods of relying on accounts of the day’s proceedings from news reporters are no longer adequate in an age of increased openness and transparency. News reporting is severely restricted in terms of the time that can be allocated to any one story. On average, each day’s proceedings can consist of five hours of testimony and argument. A radio reporter will have about 90 seconds of air time into which to condense all that. A television reporter may have all of three or four minutes. Newspapers of course, have more space, but often don’t have as much impact, and certainly don’t have the reach of television.
So I think that the time has come to go beyond our customs of the past 100-plus years. We already have in the region, in the Caribbean Court of Justice, a court which has, through technology, thrown its doors wide open to the public. Proceedings are recorded for both audio and video, and during the Jamaican leg of the Shanique Myrie case, local media houses were able to air excerpts from the proceedings for the public to hear.
We don’t have to wait to do this until “we have the money.” Let’s make a decision that it’s important, enact
English: Sky News television camera. (Photo credit: Wikipedia)
the laws needed to allow it to happen, and then work out details afterwards.
I join with the Lord Chief Justice of England and Wales in saying that I too would “look forward to people to seeing the court as it actually works…”
PS: It’s NaBloPoMo in the US (National Blog Posting Month) so I’ve joined the challenge of posting every day during November.
Will the so-called Anti-Gang Bill before the Jamaican Parliament restrict freedom of expression of our artistes? A lively discussion has started, and I will be looking at its provisions much more closely at another time.
Here are a few preliminary observations however. Societies have often found it necessary to restrict freedom of expression in the interest of the society as a whole and in the interest of vulnerable groups.
In the United Kingdom, the Public Order Act 1986 prohibits the display of written material which is “threatening, abusive or insulting” if one intends to stir up racial hatred or if racial hatred is likely to result.
The fact that restrictions on the right to freedom of expression may be necessary is recognized in the
19 (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3). The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
Criminal activity is defined as the “planned ongoing, continuous or repeated participation or involvement in any serious offence.”
A criminal organization is defined as “any gang, group, alliance, network, combination or other arrangement among three or more persons (whether formally or informally affiliated or organized and whether or not operating through one or more bodies (corporate or other associations) that:
(a) has as one of its purposes the commission of one or more serious offences and
(b) in relation to which the persons who are a part thereof or participate therein (individually jointly or collectively)
(i) have engaged in unlawful activity in order to obtain directly or indirectly a financial or other material benefit or to gain power or influence or
(ii) issue threats or engage in conduct to create fear or to intimidate or to exert power or influence in communities or over other persons.”
Our own Charter of Rights contains a provision seen in constitutions of other countries, namely that Parliament may pass no law to infringe the rights set out, including the right of freedom of expression “save only as may be demonstrably justified in a free and democratic society.”
In other words, any attempt to limit the rights and freedoms guaranteed in the constitution must meet the test of being “demonstrably justified in a free and democratic society.” This is a provision that has been tested in court in different jurisdictions (and I’ll try to look at some of the resulting court decisions in another blog post). The relevant provision of the Anti-Gang Bill will therefore have to be examined in that context.
The controversial provision is section 15 (1) which states that
“A person may not use a common name or identifying sign, symbol, tattoo or other physical marking, colour or style of dress or graffiti or produce record or perform songs to promote or facilitate the criminal activity of a criminal organization.”
While we do need to look more closely at the provisions, and what has happened in other countries, it is clear that songs generally talking about Jamaica’s gun culture, for example, and yes, Bob Marley’s “I shot the Sheriff” will not be caught by the provision. The song would have to be promoting or facilitating the criminal activity of a criminal organization. Do we think it would be unjustified to ban such a song?
Sure, we need to look at the Bill closely, and see if any of the provisions are problematic in their wording or likely effect, but how about we calm down first? Freedom of expression is not absolute. Do you really think it should be?
Attorney-at-law and gay rights advocate Maurice Tomlinson has applied to the Caribbean Court of Justice, for special leave to take legal action against Belize and Trinidad and Tobago.
Tomlinson has already sued TV stations TVJ, CVM and PBCJ in Jamaica for refusing to air an ad promoting tolerance towards homosexuals. You can read about those court proceedings in my posts here,here,here and here.
His application to the CCJ is in relation to his wish to challenge the immigration laws of Belize and Trinidad and Tobago which prohibit entry to homosexuals.
Individuals or private companies (as opposed to States) can appear before the court if granted special leave, by virtue of Article 222 of the Revised Treaty of Chaguaramas where:
“(a) the Court has determined in any particular case that this Treaty intended that a right or benefit conferred by or under this Treaty on a Contracting Party shall enure to the benefit of such persons directly; and
(b) the persons concerned have established that such persons have been prejudiced in respect of the enjoyment of the right or benefit mentioned in paragraph (a) of this Article; and
(c) the Contracting Party entitled to espouse the claim in proceedings before the Court has:
(i) omitted or declined to espouse the claim, or
(ii) expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled; and
(d) the Court has found that the interest of justice requires that the persons be allowed to espouse the claim.”
Court documents filed by Tomlinson reference the revised Treaty of Chaguaramas, which provides that “member states should commit themselves to the goal of free movement of their nationals within the Community.”
They also reference CARICOM’s Charter of Civil Society which speaks about fundamental rights and freedoms
including the right to free movement within CARICOM, and which requires states to respect and protect human dignity.
Tomlinson is asserting that his right to freedom of movement has been violated, and that it is an affront to his dignity to limit his movement through CARICOM because of his sexual orientation.
He says the Government of Jamaica has declined to agree to allow him to espouse the claim, stating that “there is no adequate basis” on which to do so.
In his affidavit attached to the application, Tomlinson states that:
“I am aware that…the act provides that the Minister may exempt any person. I am not prepared to apply for an exemption. If I applied for and was granted an exemption, I would be acquiescing in this unjust and discriminatory law. It would be offensive to me to be subject to questioning by State officials about the details of my sexual orientation and private life simply for purposes of determining whether I should be permitted to enter the country. I do not wish to visit Belize until all persons cast as “prohibited” by reason of their sexual orientation are free to visit the country.”
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.
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
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
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.
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.”
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.
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.
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 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.
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
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…”
“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 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).”
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;
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;
Here’s a summary of the major issues and proceedings from the first day:
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.
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?
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.