A demanding profession

David de Caires

(Today marks the 10th anniversary of the passing of, Mr David de Caires, the founder and first Editor-in-Chief of the Stabroek News. From the launch of the newspaper in November 1986 up to the time of his passing, de Caires fought unremittingly here and in the region for the cause of press freedom. He envisaged the newspaper as providing a forum for all voices particularly those who had no access to decision-makers and who had been cowed by years of repression. A lasting legacy of his work is the flowering of the letter pages and latterly its digital version in the form of comments to stories on its online edition. His contribution to the profession of journalism will forever be remembered. In his memory, we reprint today an address he delivered to the Guyana Bar Association at its annual dinner on the 4th December 1999 at the Georgetown Club.)

I find myself tonight in the position of a poacher turned gamekeeper. After having practised law for over thirty years from 1960 to the early 1990s I have spent the last eight years looking at the profession as an outsider. I reveal no secrets when I tell you that the general view held of your profession, here and elsewhere, is not a flattering one. Lawyers are widely perceived to be unreliable, avaricious and incompetent. The Dickensian image has never faded and the modern equivalent of the case of Jarndyce is still no doubt alive and well. It was Jeremy Bentham, the apostle of utilitarianism, who said that “lawyers are the only persons in whom ignorance of the law is not punished”. More recently, the novelist Doris Lessing, presumably as a result of her own experiences, remarked that “in university they don’t tell you that the greater part of the law is learning to tolerate fools”. This sounds just like the sort of remark that might be made by one of our own well known senior counsel, who shall be nameless. And the Godfather author, whose knowledge of the mafia must lend some respect to his proposition, wrote that “a lawyer with his briefcase can steal more than a thousand men with guns”. A deadly accolade indeed.

Yet despite the unflattering remarks down the ages, from Shakespeare to Puzo, and despite the known abuses, we are also aware that your profession continues to play a vital role, together with the judiciary, in upholding the rule of law which is such a vital part of our democracy. The basic rights of citizens are still upheld in our courts, the writ of habeas corpus continues to safeguard our freedom from arbitrary arrest and detention, the presumption of innocence still applies in criminal cases though there have been suggestions from reputable sources that it should be qualified in some types of cases, contracts are still enforced and damages awarded for torts though with far less promptness than most citizens consider desirable. The fundamental structure of the common law and the statute law that we inherited is still with us, strengthened by our constitution which is in the process of being changed, and the basic duty of your profession surely is, as it always has been, to uphold the rights of citizens and the rule of law.

David de Caires receiving the Commonwealth Press Union’s Astor Award in 1992 for his contribution to press freedom.

One is aware of the enormous institutional problems, the malfunctioning of bail court and chambers due partly to an inadequate acquaintance by our judges with the rules of court or an unwillingness to enforce the procedures prescribed therein leading to grotesquely long lists and a situation in which I am informed that if you want to file a bail court writ now you have to take a date in February, thus jeopardising the whole essence of this speedy procedure for enforcing debts on which banks, businessmen and leading institutions rely, the backlog of cases and the    proposals made to deal with that, the lack of local law reports which surely make it impossible to develop a local jurisprudence, the unpardonable delay in writing decisions (some judges have reportedly left the bench without ever writing same) and the decline in the quality of those decisions. Those are issues I know that agitate you all and there are many others like the lack of law reform. Our society is bedeviled at so many levels by the lack of skilled resources. But that is not what I want to talk about tonight. I intend, rather, to talk about my new profession, that of journalism and the business of newspaper publishing. You will note that I refer to journalism as a profession. I do so because it is my experience that if one takes it seriously and aspires to high standards it is quite as onerous as your own and as intellectually demanding and requires both considerable experience and painstaking attention to do it with a measure of competence.

The profession of journalism also has its bitter critics. Indeed in America today there is widespread disillusionment with the media generally and with what is seen as their pandering to sensationalism, their invasion of privacy and perhaps more structurally significant, their acquisition by large business conglomerates, creating obvious conflicts of interest with other industries in which the owners are involved. Press freedom, like the rule of law to which it is indirectly related, is a tender plant also subject to abuses and ultimately only maintainable if those involved have some kind of overriding commitment to an ideal of democracy and an open society.

Good journalism consists essentially in reporting as clearly, fairly, accurately and objectively as possible the events of the day. This is by no means as easy as it may sound. I would say it takes at least ten years for a reasonably intelligent person to do it at a level of professionalism that is acceptable. In the first place, one has to learn to sort the wheat from the chaff. For example, for a perhaps unhealthy part of the time one tends to be covering the speeches of politicians. Eighty per cent of what they say is platitudes and rhetoric, ten per cent is things they would like to get around to doing but never do, with luck about half of the other ten per cent may be worth reporting. A good reporter learns to look for the hard news beneath all the chatter and will often concentrate more on the other speaker at the ceremony, if there is one, be he project manager or otherwise, who gives credible detail about what has been done and the problems that exist. Politicians and other movers and shakers almost inevitably put a spin on things. The job of the experienced reporter is while reporting the speech to give background and perspective, to give balance. If you have ever prepared a speech for a politician or written a press release you will know that the natural human tendency is to emphasise the good and positive things while ignoring or minimising the difficulties and failures. Everything is cleaned up and made to seem hunky dory, it is sometimes called spin  doctoring. A reporter must have the ability to go beyond the public relations veneer, to look for the reality.

The mantra of the reporter ought to be that facts are sacred. They must not be twisted, manipulated or presented with too much adjectival colouring. As lawyers, you will appreciate how difficult that can be. When taking a statement in a case for one’s client one can, perhaps innocently, push a witness in a certain direction by the way a question is phrased, for example,how fast was the other car travelling rather than what was the speed of the other car. The witness will often give the answer he senses you want. The objective pursuit of the truth with which both of our professions are meant to be concerned is not easy and though your average journalist will not have the cross-examining skills of some of the luminaries here it is their duty by asking intelligent questions to arrive at a proper understanding of the event being covered so that they can report it accurately. That means that they should be well informed on the topic and must speak to all the interests involved to get a balanced story. This is quite as difficult as it sounds, thus the difference between a novice and a highly skilled professional journalist will be quite as wide as that between a newly qualified lawyer and senior counsel at the top of his profession. If you respect the discipline and do the necessary background work over the years you acquire the skills.

“Comment is free, facts are sacred”. This famous saying of C.P. Scott, one time editor of the Manchester Guardian, is a good working rule for editors. In your editorial columns, you can express your opinions freely. Your readers may or may not agree with them but if you do your job well you may stimulate some interest or thought on the topic, even if you fail to convince. But your editorial columns must be entirely separate from your news columns. In the latter, it is your sacred duty to report the facts in as balanced a manner as possible and entirely uncontaminated by your editorial opinion or bias. You must not try, in your news columns, to push your readers in a certain direction. Let them judge from the facts. To the extent that you fail to do this you are betraying your sacred trust and you are damaging the credibility which it is the ultimate objective of all newspapers to achieve. That is what all serious newspapers aspire to, a situation in which people who may disagree profoundly with their editorial opinions, or some of them, may still read the newspaper because they trust it to report fairly. Such trust is quite properly not lightly won. If you ever get there, if you ever convince a substantial part of the population that you are basically in good faith, you are well on the way to becoming a good newspaper.

And I believe that a good newspaper that reports fairly and accurately, and whose editorial opinions are sober and responsible, is a priceless asset in any country. It becomes a part of that countervailing power which is an essential part of democracy, as  well as covering what the government does it gives voice to opposition parties, to business and trade unions and to all the many other interests who seek to have their say. It helps to inculcate moderate and responsible attitudes and to expose extremism. It helps to show that the truth is not simple but many sided and complex, that there is no simple prescription for progress, that the price for democracy seems sometimes to be a veritable tower of babel which one seeks in vain to distill or integrate, as it were, in a closing address.

Free speech is something we all say we believe in. Indeed it is protected by our constitution. Yet there is a real price to be paid for it. We all support the principle when the speaker or writer says things we agree with or espouses views similar to our own but we are often deeply upset or offended by speakers whose views differ radically from our own and who advocate solutions that we consider flawed or unrealistic. But that is what free speech is all about, the open and uninhibited exchange of views without censorship subject only to exceptions for libel and sedition. In that context, it is my belief that

public figures should not be able to succeed in libel actions unless they can establish malice, that is that the publisher knew the report to be untrue or published it recklessly with no effort to check the facts. That was the law laid down by the Supreme Court of America in Sullivan v New York Times. An effort was made to have that case applied here but the Court of Appeal gave the submission short shrift. I believe it is in the interest of the nation that official actions of persons in public life be subject to the widest scrutiny. The present laws of libel make this difficult.

Other dilemmas face the publisher. In an ethnically sensitive society does one publish views that offend some people, for example a proposal for a federal Guyana with its implicit subtext of some sort of ethnic separation? How does one cover events involving ethnic conflict? Where does one draw the line? Should everything be reported, regardless of the possible consequences?

Free and independent media can never get into bed with the government of the day or indeed with an opposition party. As the so called watchdog of the people it is one’s duty to maintain a proper distance, to give praise where it is seen to be due and to criticise when necessary. Inevitably, that will lead to clashes with governments and other vested interests, as it has done from time immemorial. Publishing a newspaper is not meant to be a way of winning popularity contests. Indeed taken to its logical conclusion it is a strenuous and demanding task that requires a proper understanding of the duties and rigours of one’s office and the avoidance of linkages or al1iances that inhibit balanced reporting. One must, so to speak, have an ideology of free speech, be committed to the proposition that all interests have a right to be heard, not only those we support, and must cover topics fearlessly. It is a great betrayal of one’s responsibility to avoid tackling tough issues, to cater to powerful interests and to avoid controversy. In the course of this century newspapers have committed many grave abuses. For example, Lord Northcliffe’s Daily Mail was jingoistic, anti-German and warmongering. A liberal journalist said of Northcliffe in 1914 after the First World War had started “It has always been your part to prosphesy war and cultivate hate. There is nothing more tempting to a journalist than to be an incendiary. It is the short cut to success, for it is always easier to appeal to the lower passions of men than to their better instincts”.

The mainstream papers in the Caribbean are on the whole conservative and cautious though there have been disturbing trends in favour of lurid headlines and sleezy coverage recently, perhaps in pursuit of circulation. Caribbean newspapers also tend to be parochial and do not operate from a wider perspective of the region or the hemisphere but they are on balance not petty chauvinist, except, where the selection of cricket teams is concerned.

The popular press in the UK is sensationalist, frequently chauvinist, sleazy and sometimes ruthless in its invasion of privacy. The current leader of the pack, the Sun, which sells over 4 million copies a day had as its headline for the 1992 election “If Kinnock wins today will the last person to leave Britain please turn out the lights”. That is unimaginable in the Caribbean. During the Falklands war it distinguished itself with headlines like Stick it up your Junta. There was, of course, the infamous GOTCHA when the Argentine warship the General Belgrano was torpedoed by the British. As evidence increased of widespread deaths even the redoubtable Kelvin Me Kenzie changed the headline in later editions to read “Did 1200 Argies drown?” though the great man himself, Rupert Murdoch, the modern counterpart to Northcliffe and Beaverbrook later told Me Kenzie “I wouldn’t have pulled it if I were you. Seemed like a bloody good headline to me”.

More mundanely, the line to be drawn between a fair and tendentious report is often a delicate one. Under the pressure of deadlines, mistakes of fact or balance are frequently made, sub-editors produce provocative headlines and so on.

I would like to end with three of my favourite quotations, from the English scholar and poet John Milton’s Areopagitica, a famous speech in 1644 in response to an Order of Parliament requiring the licensing of all books and a charge filed against him thereunder, the second from Judge Learned Hand in the case of United States v Associated Press and the last from John Stuart Mill, the English philosopher.

Milton said in opposing censorship: “Nor is it to the common people less than a reproach; for if we be so jealous over them, as that we dare not trust them with an English pamphlet, what do we but censure them for a giddy, vicious and ungrounded people; in such a sick and weak state of faith and discretion, as to be able to take nothing down but through the pipe of a licenser? That this is care or love of them, we cannot pretend, whereas, in those popish places where the laity are most hated and despised, the same strictness is used over them. Wisdom we cannot call it because it stops but one breach of license, nor that neither; whereas those corruptions, which it seeks to prevent, break in faster at the other doors which cannot be shut”.

Dealing with the First Amendment to the American constitution, which protects freedom of speech Judge Learned Hand said that it “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many that is, and always will be, folly; but we have staked upon it our all”.

And John Stuart Mill dealing with the question of fallibility in human affairs wrote in his essay on liberty: “To argue sophistically, to suppress facts or arguments, to mis-state the elements of the case, or misrepresent the opposite opinion…al1 this, even to the most aggravated degree, is so continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable and still less could law presume to interfere with this kind of controversial misconduct”.

It may be well to keep this in mind when reading our newspapers and listening to our learned brethren making submissions in court.





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