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Libel or political picong?

Monday, July 17 2017

THE HIGHEST court should determine the law as it relates to libel as this has implications not only for politicians but our democracy as a whole.

The recent case involving former Congress of the People (COP) political leader Prakash Ramadhar should be taken to the Privy Council to have the outer limits of freedom of expression settled. The Court of Appeal last week upheld the High Court’s order that Ramadhar pay his brother Kishore damages stemming from a 2015 statement. But that ruling should be further tested because the issues raised are too important to leave unsettled.

The case involved political developments relating to the COP but actually could have occurred in any political party.

“It was a collateral and unrelated attack on the claimants with the intention of bolstering his position as leader of the party and the direction of the party at the expense of the claimants reputation,” High Court Justice Vasheist Kokaram had ruled in the matter. Ramadhar appealed the judge’s ruling and his attorneys, led by Senior Counsel Ramesh Lawrence Maharaj, argued that the words spoken were neither referable to or defamatory of the three; were covered by qualified privilege; were a proper reply to an attack and were fair comment on a matter of public interest.

The defamation claim arose out of statements allegedly made by the COP leader and the party’s chairman at a COP National Council meeting on November 10, 2013, regarding a letter dated October 1, 2013, in which the three were accused of sending to the then Opposition PNM, information about the COP’s membership.

The importance of this matter arises not because of the nature of the parties involved.

In fact, there can be little else that is more academic than the legal implications of an obscure political spat within a political force whose time has long passed.

But in a preamble to delivering the ruling, Chief Justice Ivor Archie noted while some may say politics has a morality of its own, freedom of speech is not a complete licence. He also noted that in society, often times people take the liberty to make ‘toxic, injurious, and downright irresponsible’ statements.

Yet, ‘toxic, injurious, and downright irresponsible’ statements are the bread and butter of politics and free speech.

Indeed, the line between the normal parameters of political rhetoric and a libel is one which is regularly ignored by politicians who, enjoying certain privileges in Parliament, take calculated risks when doing so.

Politicians are allowed these rights because in the end a society with free, open discourse __ even if deeply flawed __ is preferable to the alternative: a society of censorship and silence under authoritarian rule. This is not just about free speech, it is also about the flow of information - it is about transparency and potential fetters to it.

Which is why it is important for the law to achieve a fine balance. There are clear tests within the common-law that seek to ensure such a balance is maintained and it must be determined whether these tests apply to this case.

The law must be settled once and for all to not only preserve politician’s rights __ whether they deserve it or not __ but also ours.



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