My focus was on the portion of the judge’s Order banning publication of matters from the Annual Reports of a public company

Dear Editor,

Mr. Rex McKay, S.C., has responded to a release which I made in the press. In that release, I wrote in defence of the constitutionally guaranteed right of freedom of the press to publish matters of public interest and the corresponding right of the public to receive that information. As is his wont, Mr. McKay was most caustic in his ad hominem remarks. In time and with maturity, I have grown to ignore such parody.

It is manifest that learned Senior Counsel spared neither the time nor the effort, to properly advise himself of the particulars of the Order of the Honourable Judge which formed the subject of my commentary. The Order about which I wrote was issued by the Honourable Judge on the 21st October, 2013, in Chambers. The only persons present were, the Editor of the Guyana Times, its Manager and a Corporate Secretary.

The learned Judge’s edict was understood as a direction prohibiting Guyana Times from publishing all matters regarding Guyana Stores Limited, specifically including, matters from its Annual Reports and shareholders grievances against Directors; and that publications regarding the pending matter, must be confined to the evidence adduced in Court.

It is the first limb of the said Order with which I respectfully took umbrage. However, Mr. McKay’s entire epistle concerns certain admonitions made by the learned judge of press reports which may tend to prejudice a fair trial. In Mr. McKay’s own words:

“Justice George in the presence and hearing of Attorney-at-Law for NICIL said that she had no objection to the evidence taken in Court being reported in the press provided that they do not contain expressions of opinions and analyses of the evidence which tend to prejudice a fair hearing and the determination of the issues before her.”

With these exhortations of the learned Judge, I am in complete agreement. They are legitimate judicial concerns which find expression in the trite references made by Mr. McKay to several reported cases. But they were not the subject of my comments.

Learned Senior Counsel’s entire argumentation, therefore, is predicated upon a misconceived factual and legal premise. A little circumspection could have avoided such frolic.

The quintessence of my focus was that portion of the Order, issued on the 21st October, 2013, in Chambers, which prohibits publication of matters which were extracted from the Annual Reports of a public company, formerly owned by the State.

These are documents which are required by law to be filed as public records with two statutory State agencies/public authorities, the Guyana Securities Council and the Registrar of Companies. As public records, their contents are matters which the press has a constitutional right and duty to impart and the populace, a reciprocal right to receive. Indeed, the right of members of the public to receive such information is not only a constitutional freedom but one that is recognized by the Companies Act which provides that upon the payment of the requisite fee, the Registrar should make such information available to a member of the public. That they may be evidence, or likely to be evidence, in a court, is wholly and utterly irrelevant. The sub judice rule cannot be used as a basis to prohibit their publication. Mr. McKay has scrupulously omitted to address this quintessential issue.

Mr. McKay concludes his missive, thus: “Having regard to the facts and the reportage by the newspapers, the Attorney General’s conclusion … is itself gravely misconceived and bad in law.”

I read his letter several times to find where Mr. McKay, has himself, set out “the facts and reportage by the newspaper” to support his own conclusions. He did not do so. He has made no reference, whatsoever, to any aspect of the “reportage by the newspaper” which constituted “expression of opinion or analysis of evidence”. It is imperative that those transgressions be identified before the otherwise scholarly letter of Mr. McKay can even be considered relevant.

Indeed, what is in fact pointedly relevant is the erudite declaration by Senior Counsel in his letter that “a conclusion unsupported by facts or based in falsified facts is worthless. It has always been a counsel of prudence to disclose the facts from which one’s inference has been drawn”. Clearly, by his own standards, Mr. McKay is demonstrably imprudent.

I now turn to comment on the judicial authorities to which learned Senior Counsel made reference. My first observation is that only supportive excerpts of the judgments were quoted. Portions of those very judgments which contradict Mr. McKay’s position, or were unsupportive, were conveniently omitted. For example, heavy reliance is placed on AG –v- Times Newspapers Limited (1973) 1 AER at page 821. Copious extracts were selectively quoted from Lord Denning’s judgment in that case to support Mr. McKay’s contention. What is striking is the disingenuous omission of Mr. McKay to quote the remainder of the very paragraph from which those excerpts were taken. Unsurprisingly, when examined, they contradict Mr. McKay’s arguments. I will now quote the words omitted. They immediately follow from where Mr. McKay left off. They are from the very paragraph of the very page from which he quoted. The omission, therefore, cannot be through inadvertence. Lord Denning continued:

“…And when considering the question, it must always be remembered that besides the interest of the parties in a fair trial or a fair settlement of the case there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make fair comment on such matters. The one interest must be balanced against the other. There may be cases where the subject matter is such that the public interest counterbalances the private interest of the parties. In such cases the public interest prevails, Fair comment is to be allowed, it has been so stated in Australia to the courts of law.”

Another conspicuous omission of learned Senior Counsel is his failure to disclose that the Times Newspapers Ltd. (U.K.) took the matter to the European Court of Human Rights. They invoked Article 10 of the European Convention on Human Rights to which the United Kingdom is a signatory. It provides:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers.”

The European Court of Human Rights, by a majority of eleven to nine, upheld the claim of Times Newspapers Ltd (U.K.) that they had a right to impart the information despite pending litigation. In short, this ruling, inferentially, overturned most of the authorities upon which Mr. McKay relied. Having regard to the authorities cited, I verily believe that learned Senior Counsel and I consulted the same text. It is Lord Denning’s – The Due Process of Law. The information regarding the European Court of Human Rights ruling to which I have made reference, are set out in the very chapter from which Mr. McKay quoted. After mentioning the ECHR ruling, Lord Denning, at page 49 of his text, expressed his expectation: “Let us hope too that the public interest will prevail so as to stop what has been called a ‘gagging writ’. “ Mr. McKay omits these seminal bits. Again, I say that this is not an oversight. Mr. McKay’s industry and diligence will simply not permit it.

I feel impelled to share the learning propounded by the European Court of Human Rights in the Times Newspapers’ case. On the question of the right of the press to publish matters which are sub judice, the Court said at page 33, paragraph 65:

“There is general recognition of fact that the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.”

Unlike Mr. McKay, I read the articles published by the Guyana Times. I am of the opinion that the matters published are information of a public nature and therefore, the press has a right to publish it and the nation, a right to receive it. The publications do not, in any way, prejudice a fair trial nor undermine, in any manner, the administration of justice.

The call for an apology is, therefore, hopelessly misplaced.

Yours faithfully,

Mohabir Anil Nandlall

Attorney-General and

Minister of Legal Affairs     

 

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