The judge had to satisfy herself whether the ongoing publications in the Guyana Times posed a real danger to the trial of the action and decided that it did

Dear Editor,

This is my response to the letter by the Attorney General published in the Stabroek News of the 4th November, 2013 `My focus was on the portion of the judge’s Order banning publication of matters from the Annual Reports of a public company’.

My earlier letter published in the Stabroek News 31st October, 2013 `AG’s conclusion that judge’s order abused the sub judice principle is gravely misconceived’ was in response to statements made in a letter and published in another newspaper  by the Attorney General on the ‘Order’ made by the Honourable Justice Madam George restraining the Guyana Times newspaper from a pattern of publication of the proceedings in the NICIL v. Guyana Royal Investments Inc. In that letter Mr. Nandlall arrogated to himself the powers of “protector of the public’s legal interest and the defender of the Constitution of Guyana.” Mr. Nandlall’s  misconception and other reasons may explain his commentary on a matter in which his office is not involved.

For the benefit of the public therefore, I think it is necessary to set out in some detail the factual matrix and the law under which the judge exercised her judicial authority to ensure that there will be no trial by the Media. Mr. Tony Yassin is now the controlling shareholder in Guyana Stores Limited, a former government company. Mr. Yassin is also a close friend of Mr. Glen Lall, the publisher of the Kaieteur News Newspaper which has been publishing and exposing the several transactions which the Government had with  the principal shareholder of the Guyana Times Newspapers (Mr. Bobby Ramroop) who has benefitted substantially from those transactions.

Almost daily for several weeks, the Guyana Times had been carrying scurrilous and disparaging articles of and concerning Mr. Yassin, while the court proceedings were taking place. It is the publication of these articles that aroused the court’s interest and prompted its action.   It is interesting that while Mr. Nandlall admits that he was not in the chambers of the judge when the order was made, he still considers himself competent to dissect and criticise the judge’s order, having failed to state exactly the text and terms of the order made by Justice George.    The onus of proof is always on the person who alleges – in this case, Mr. Nandlall.

Mr. Nandlall claims that he was writing “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.”  These are not unfettered or absolute rights as I assume Mr. Nandlall well knows. Indeed, these rights contained in Article 146 of the Constitution of Guyana are subject to the following restrictions:

1. Laws which:

i)  protect the reputations, rights and freedoms of persons or the

private lives of persons concerned in any proceedings;

ii)  maintain the authority and independence of the courts; and

iii) ensure fairness and balance in the dissemination of information to

the public.

2. Article 40 of the Constitution which subject the fundamental rights and freedoms of the individual to the rights and freedoms of others or to the public interest, a term of wide import.

3. The Defamation Act, Cap. 6:03, which in addition to providing redress for defamation protects fair and accurate reporting only.

4. The Contempt of Court Act, No. 25 of 2010, Section 10 (2)          of which provides that “a Court may, where it appears to be necessary to avoid obstruction or prejudice to the administration of justice in any proceedings pending before the Court, order that the publication of the proceedings or any part thereof be prohibited;”  Subsection 10(4) of which provides that “when an Order is made under subsection (2) any person who, with knowledge of it disobeys that Order shall be guilty of contempt and punishable as is prescribed in subsection 6.”

The Right to Freedom of information is one of the most important freedoms which guarantees the right of the media to inform and the public to receive information.  However, the public interest in free speech is not an unfettered right, but is subservient to the following competing interests.

It is under the authority of Article 146 of the Constitution and the laws properly made thereunder and the common law of England that the judge exercised her discretion to make the order against the Guyana Times.

The decision whether or not to make the order was vested in the judge alone.

The learned trial judge had to satisfy herself whether the ongoing publications in the Guyana Times of and concerning Mr. Yassin posed a real and substantial danger to the trial of the action.   The Judge exercised her discretion and decided that it did.

In the circumstances Mr. Nandlall should have deferred to the judge’s exercise of her discretion unless there were no facts on which she could have exercised her discretion.   See Hadmor Productions Ltd. v. Hamilton (1982) 1 AER 1042.

It is trite that reasonable and moderate criticism of judicial decisions is permissible and does not constitute contempt.  In the Privy Council case of Ambard v. A.G. for Trinidad and Tobago (1936) 1 AER 704 Lord Atkin distinguished the imputation of improper motives and malicious comment on the one hand from good faith criticism on the other.  The A.G., without undertaking an adequate or any assessment of the facts surrounding the publications in the Guyana Times launched his criticism of the Judge’s Order.  Was Mr. Nandlall’s criticism of the Judge’s Order a “good faith criticism” or “malicious comment?”

Mr. Nandlall claims in his letter under reply, that the European Court of Human Rights in the Times Newspaper case had overturned the authorities to which I referred in my letter.  Not true Mr. Nandlall!  The House of Lords on two occasions since the Times Newspaper case was decided by the EHRR, advised to the contrary.

Firstly, in Attorney General v. BBC (1981) AC 303 Lord Scarman was emphatic that the common law of England as declared by the Law Lords in A.G. v. Sunday Times Newspapers Ltd. (1974) A.C. 273  is the law by which the Courts of England are bound and not the European Courts decision reported in The Sunday Times v. United Kingdom (1979) 2 EHRR 245.  Lord Scarman said:

“Of course, neither the Convention nor the European Court’s decision in The Sunday Times case is part of our law.   This House’s decision, even though the European Court has held the rule it declares to be an infringement of the Convention, is the law.  Our Courts must continue to look not to the European Court’s decision reported as The Sunday Times v. United Kingdom (1979)  2 EHRR 245, but to the House of Lords decision reported in Attorney-general v. Times Newspapers Ltd.  [1974] A.C. 273 for the rule of English law.”

Secondly, in A.G. v. Guardian Newspapers (No. 2) (1990) 1 AC at p. 283,  in support of  Lord Goff’s statement said:

“Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights.  This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world.   The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”

The European Court itself has accepted that in appropriate circumstances legal restrictions may be imposed on the press and other media to protect the authority of the judiciary to ensure that the public has confidence in the capacity of the Courts to provide a proper forum for the settlement of litigation.  See  Sunday Times v. U.K. (1979) 2 EHRR 245 (at paras. 55, 61 and 65) .

In Worm v. Austria (1997)  25 EHRR 454 the Court adopted and applied

the principle in the Sunday Times v. U.K. case and found that the conviction of a journalist for writing an article accusing a former politician of guilt was a justifiable interference with the Applicant’s freedom of expression which served the legitimate aim of upholding the authority and impartiality of the judiciary.

In my earlier letter published in the Stabroek News, I referred to a passage from the judgment of Lord Denning in A.G. v. Times Newspaper (1973) 1 AER 815 at p. 822, which reads:

“It is undoubted law that when litigation is pending and actively in suit before the Court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action.

I regard it as of the first importance that the law which I have just stated should be mentioned in its full integrity.  We must not allow trial by newspaper or trial by television or trial by any medium other than the Courts of law.”

Mr. Nandlall claims that I did not continue to refer to certain passages from Lord Denning’s judgment which are at page 822.  In the said passages, Lord Denning was dealing with the principle relating to “the interest of the public in matters of national concern, and the freedom of the press to make fair comment on such matters,” he said:

“There may be cases where the subject matter is such that the public interest counter balances the private interest of the parties.  In such cases the public interest prevails.”

There was nothing in the subject matter raised by Mr. Nandlall’s two letters which could be regarded as one of “national interest” or “national concern” to counter-balance the private interest of the parties.

At page 822 Lord Denning described the Thalidomide case as one of the greatest public interest, and the “Thalidomide children are the living reminders of a “national tragedy.”

Although Lord Denning was of the opinion that the Thalidomide case was one of public interest, which counter-balanced the private interest of the parties “authorizing the press to make fair comment,” he was at pains to emphasise that the press “must get their facts right and keep their comments fair.”   Continuing at p. 822, he said:

“Nearly 12 years have passed and still no settlement has been reached.  On such a matter the law can and does authorize the newspapers to make fair comment so long as they get their facts right and keep their comments fair, they are without reproach.   Our law of contempt does not prevent comment before the litigation is started, nor after it has ended, nor does it prevent it when the litigation is dormant and is not being actively pursued.

It is active litigation which is protected by the law of contempt, not the absence of it.

All my references to Lord Denning’s judgment in the Times Newspapers case were made from the Law Reports not from his “due process of law” as alleged by Mr. Nandlall.

Mr. Nandlall’s bold contention  that by prohibiting the publication of  public records of a company in the Guyana Times Newspaper, the Judge fell into error because that is a matter of “national importance” and of “national interest” which could be equated with the Thalidomide “national disaster” is without merit and his “quintessential issue” is therefore a non-essential issue which is otiose.

That issue was conveniently raised to gain entry into the ‘arena’ with the sole and predominant purpose under the cover of being the “protector of the public legal interest and defender of the Constitution,”  to paint “a wrong and incomplete picture of the Judge’s Order.  One must consider whether the words used by Mr. Nandlall have the tendency to scandalize the Court and bring it into disrepute?

In the circumstances, it is improper, distasteful and undignified for the Attorney General in such a cavalier and irresponsible manner to seek to substitute his at best partial, second-hand information for the considered decision of the judge.

Propriety and taste being personal traits, it is up to Mr. Nandlall to decide whether he is disposed to making the apology.

Yours faithfully,
Rex H. Mc Kay, S.C.

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