Freedom of Expression in the
English Speaking Caribbean: The Clash between
Aspirations and Current Regulation
Wesley Gibbings
Curridabat, Costa Rica
May 11, 2012
A free expression scorecard
for the English-speaking Caribbean, as a
collective, is among the more challenging intellectual undertakings that can be
engaged, particularly when conventional measurement tools are strictly applied.
Censorship in this region often requires no official dictat, impunity is
ubiquitous yet difficult to recognise, the cloak of Westminster can belie autocratic traits and
cultural relativism is frequently employed as a rationale for deviations from
accepted universal norms.
Only three Caribbean
Community and Common Market (CARICOM) countries – Belize,
Jamaica and Trinidad and Tobago
- have access to information laws; all have criminal defamation on their
statute books while broadcasting legislation and regulations, to an increasing
degree, impose regimes of official censorship. There has also been a recent
trend to attempt to impose restrictions on expression via official secrets’ and
data protection legislation and to apply official regulation in the context of internet
content.
The Association of Caribbean
MediaWorkers (ACM), acting in concert with the International Press Institute
(IPI), has launched a campaign against criminal defamation in the Caribbean. In Jamaica,
activists currently oppose an Official Secrets Act while in Trinidad and Tobago there is a
strong media industry lobby to re-direct the focus of a Data Protection Act.
However, before we proceed,
it is important to define the “Caribbean” referred to in this paper. The
working definition as applied by the Association of Caribbean States (ACS)
includes 25 countries – most of which are “washed by the Caribbean Sea” though El Salvador, which does not have a Caribbean
shoreline, is included along with Guyana
and Suriname which are
“washed” by the Atlantic Ocean.
Then there is the notion of a
“wider Caribbean” which includes the Caribbean shores of Florida
and the island of Puerto Rico, which does not feature in any formal Caribbean political grouping.
My focus is on the countries
of CARICOM, though if we were to apply the formal structure of CARICOM as the
applicable paradigm and omit from it the anomalous presence of Haiti and
Suriname, we are left with 12 former British colonies that have, many of them,
passed through both French and Spanish colonial hands and one which remains an
offshore holding of the United Kingdom.
Membership of CARICOM by Belize in Central America and Guyana in South America makes the story even
more interesting from the standpoint of historical antecedents and, by
extension, the circumstances under which these territories - claimed as
English-speaking Caribbean turf under the banner of CARICOM - operate as
parliamentary democracies customised out of the Westminster model of representative
government.
A majority of CARICOM
countries are also constitutional monarchies with the sovereign of the United Kingdom
as Head of State. In most instances, as well, the Judicial Committee of the
Privy Council remains the final appellate jurisdiction of Commonwealth
Caribbean states. Only three (Barbados,
Belize and Guyana) of the CARICOM groupings’
12 independent countries currently subscribe to the Caribbean Court of Justice
as their court of final appeal. There are, currently, politically fluid debates
in Jamaica and Trinidad and Tobago
regarding adoption of the CCJ as their final court of appeal.
The CCJ already serves as a
court of original jurisdiction to interpret and apply the Treaty of Chaguaramas
which established CARICOM in 1973. This is with the exception of Montserrat
which is yet to receive Instruments of Entrustment from the UK in
order to ratify and The Bahamas, which is not part of the Common Market
arrangements of the grouping.
In 1997, CARICOM countries
also all subscribed to what was called a Charter of Civil Society for the
Caribbean Community. At Article II, there is an injunction to support freedom
of conscience and expression. There is no evidence that this undertaking is
routinely referred to in actions seeking redress in the courts for breaches of
rights entrenched in our respective constitutions, in the same way Article 19
of the United Nations Declaration of Human Rights or Article 4 of the
Inter-American Democratic Charter frequently find their way into public and
courtroom discourse.
We also need to consider the impact of
cultural diversity and the frequent reliance on cultural specificity as routes
out of compliance with the letter and spirit of free expression standards. For
background, it should be noted that high levels of immigration have long been a
lived
Caribbean reality adding to the region’s
uniqueness as an economic grouping and as an emerging, evolving polity. We
speak essentially of new and diverse societies finding their respective ways in
the world.
Throughout
the history of the English-speaking
Caribbean,
the only thing as profound as the effects of outward migration on our
respective populations, has been the centuries-long impact of a constant stream
of inward migration – featuring both intra-regional and extra-regional human
inflows.
It
would be useful to note that our countries experienced net population gains as
a result of immigration right through to the 1800s and that later growth in
numbers included inflows related to the end of slavery in the British colonies,
the nurturing of new settlements driven by increased trade and commerce with
Europe and, in the case of Trinidad and Tobago, the transplanting of ex-slaves
from what is now the United States of America.
To this
day, for example, there are villages in
Trinidad
named for the military companies early African-Americans fought under as
soldiers for the British in the War of American Independence. A small number of
freed American slaves also moved to several Caribbean islands, together with
indentured labourers from
Madeira,
Germany,
England
and, to a much greater degree, from
India.
The
movement of significant numbers of people back and forth is therefore nothing
new to people of the English-speaking
Caribbean.
With the exception of a small number of indigenous groups, few families can lay
claim to longstanding genealogical links from within the
Caribbean
region.
The
Caribbean, in a sense, comprises a collective of
quintessential immigrant societies. With this, and in the context of very small
societies, has come a socio-cultural ethos that is diverse and problematic from
the perspective of small, island states and, in the case of
Belize and
Guyana, coastal states with the
ocean on one side and Spanish and Portuguese speaking republics on the other
borders.
In
Trinidad and Tobago, to cite one dramatic
example of how diversity has unfolded as law in the
Caribbean,
there is currently a lively debate on an acceptable age for the marriage of
females. The Marriage Act which governs civil and Christian marriages sets the
age of consent at 18 for males and females. The Marriage and Divorce Act
governs Islamic marriages and divorces and sets the age of consent at 16 for
males and 12 for females. The Hindu Marriage Act sets the age of consent
at 18 for males and 14 for females. The Orisha Marriage Act sets the age of
consent at 18 for males and 16 for females. Similar confusion was only recently
settled in
Guyana
where marriage ages were standardised across the religious spectrum.
In all instances, however, the universal template for recognition of free
expression has been prescribed in the post-independence constitutions of our
countries. Section 10 of the constitution of Saint Lucia elaborates fairly
extensively and is cited here: “(1)
Except with his own consent, a person shall not be hindered in the enjoyment of
his freedom of expression, including freedom to hold opinions without
interference, freedom to receive ideas and information without interference,
freedom to communicate ideas and information without interference (whether the
communication be tot he public generally or to any person or class of persons)
and freedom from interference with his correspondence.
(2) Nothing contained in or
done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes
provisions-
a) that is reasonably
required in the interest of defence, public safety, public order, public
morality or public health.
b) that is reasonably
required for the purpose of protecting the reputation, rights and freedoms of
to the persons or the private lives of persons concerned in legal proceedings,
preventing the disclosure of information received in confidence, maintaining
the authority and independence of the courts or regulating the technical
administration or the technical operation of telephony, telegraphy, posts
wireless broadcasting or television;
or
c) that imposes restrictions
upon public officers that are reasonably required for the proper performance of
their functions, and except so far as that provisions or, as the case may be,
the thing done under the authority thereof is shown not to be reasonably justifiable
in a democratic society.”
In
Trinidad and Tobago,
the constitution goes as far as identifying press freedom as an explicit right
– separate and distinct from a free expression provision that’s already there.
Successive constitutional reviews have raised questions about the advisability
of such a constitutional guarantee, but press freedom advocates and the media
industry have consistently and firmly resisted attempts to have it removed and
thereafter flow implicitly from the broader sweep of a free expression
guarantee. Suffice it to say, there is no ground-swell of public support. In
fact, recent public consultations on restrictive broadcasting policy brought
greater calls for official controls over the sector from participating citizens
than from the state regulators themselves.
Challenges to press freedom
and free expression in countries of the Caribbean
therefore span a complex variety of direct and insidious phenomena. These
include overt state hostility toward media enterprises, a heritage of
restrictive legislative environments, the commandeering of media content by
commercial and special interest groups, the corrosive effects of systemic
self-censorship and general public apathy.
Accidents of history, size and
geographical location are often cited as proximate cause and, in many
instances, the pursuit of development in the face of social and economic
challenges emerges as a default defense for the derogation of free expression
and freedom of the press.
Recurring issues in the media
include the allocation of state advertising, media self-regulation, self-censorship
to preserve advertising revenue and political and business interests and a
recent tendency to encroach on free expression on the internet.
In some countries, the work
of government ghost writers is often published in politically-aligned
newspapers and blogs in order to provide “balance” to “negative” news stories
in other media.
This often leads to the
publication of divisive and vitriolic charges against media people, which sometimes
achieve the objective of stirring up hostility against journalists. In
2011, for example, Grenada Prime Minister Tillman Thomas described a blog
written by journalist Hamlet Mark as being “dangerous to Grenada.” The Media Workers
Association of Grenada (MWAG) roundly condemned the remark.
Then, in April 2012, the
president of MWAG, Rawle Titus, lost his job as editor of the Grenada Advocate
newspaper when the newspaper’s publishers, the Barbados Advocate, insisted on
an apology from him for a story about a split in the ruling administration that
was patently accurate. In fact, weeks after, Prime Minister Thomas fired two
members of his Cabinet on account of the same internecine squabbling reported
in the offending story. The journalist remains unemployed.
In some countries, broadcast
licenses are dispensed to political allies of ruling administrations who
maintain a partisan front to the detriment of professional journalism. For
example, in Guyana,
which continues to operate a state monopoly on radio broadcasting, longstanding
applicants for radio broadcast licenses were bypassed in the announced, but yet
unimplemented, allocation of radio frequencies prior to elections in 2011.
Today, there is official silence on the issue, notwithstanding reported moves
by some who were promised licenses to source engineering and human resources.
There has also been official
insistence on preventing existing television broadcasters from extending their
transmissions into the opposition stronghold in Linden, Guyana’s
bauxite producing town and major population centre. There has been preliminary
agreement by the minority Peoples’ Progressive Party (PPP) administration to
permit such an extension of frequency reach, but strong opposition to the
granting of new licenses.
In Barbados, there is a state monopoly
on television broadcasting and no indication that the Freundel Stuart
administration, as was the case with previous governments, is inclined to
liberalise the media sub-sector. In its World Press Freedom Day 2012 editorial,
the Barbados Nation claimed the state-run CBCTV “persists with its nightly parade of ministers of
Government, despite promises by both the current administration and past to
ensure balanced programming and equal air time, as well as more transparency
and greater integrity.”
The newspaper also suggested
that attacks on the press, by both government and opposition representatives,
ranged “from muscular legal letters, in support of unsubstantiated claims, to
verbal attacks and personal threats against journalists.”
In Trinidad and Tobago, there was the
case of an application for a radio license in 1999 by the Sanatan Dharma Maha
Sabha – the country’s largest Hindu organisation. The application was made at a
time when the political party in power was the Hindu-dominated United National
Congress (UNC). When the government changed to the Afro-dominated People’s
National Movement in 2001, the application was bypassed in favour of a radio
station operated by a high-profile supporter of the new party in power.
The case eventually went to
the Judicial Committee of the Privy Council which in 2006 ruled against the
state citing Section 4 (1) of the Constitution which pronounces on freedom of
expression.
In the absence of strong,
independent civil society interventions, including credible, functioning human
rights bodies some abuses in countries of the Caribbean
however remain largely unaddressed. One outcome is general silence on
corruption, good governance and justice issues.
In many Caribbean
territories, serious journalistic investigations into such issues are also
often described as having the potential to give the country a bad name and
undermine prospects for tourism and foreign investments. Interpretations of
proposed broadcasting regulations in Trinidad and Tobago and the
Organisation of Eastern Caribbean States (OECS) can arguably be considered to
have the potential to stifle such expression.
Ongoing debates on the
imposition, via state regulation, of broadcasting standards of practice
currently ensue in Trinidad and Tobago,
Guyana
and countries of the Organisation of Eastern Caribbean States – the latter
grouping on the basis of model legislation.
In Trinidad and Tobago a
proposed Broadcast Code purported to prescribe specific standards for the broadcast
of free-to-air radio and television programs in relation to the protection of
children and young persons, harm and offence, crime, race, what was described
as “due impartiality and due accuracy in the reporting of news”, election
coverage, “fairness and privacy, the right of reply, information and warnings,
advertising and sponsorship and religion”.
Initial moves had been made
to include internet content and to prescribe penalties for breaching guidelines
associated with preservation of the public interest, but the regulators have
latterly concluded that it would not pursue such an objective. In a March 2009
justification for such a decision, the Telecommunications Authority stated
inter alia: “The Authority notes that the internet is not regulated for reasons
of practicality. The Authority notes that internet broadcasting remains much
less pervasive than free to air or cable television broadcasting.”
Vocal critics, including the
Association of Caribbean Media Workers (ACM), Media Association of Trinidad and
Tobago (MATT), and the Trinidad and Tobago Publishers’ and Broadcasters’
Association (TTPBA), have contended that the provisions of the Code,
particularly as an instrument of prior censorship linked to the acquisition of
broadcast licenses, was excessive and posed a grave threat to freedom of
expression. The Code has been revised more than once and the broadcasting
industry has offered a series of suggested amendments over time, focusing on
its constitutionality, the quasi-judicial role being adopted by the TATT and
the possibility of prior restraint on broadcasters.
The Code is yet to reach the
country’s parliament, now dominated by persons who were harshly critical of it
while they were in opposition. One such person is the current Attorney General,
Anand Ramlogan, who took office when the People’s Partnership won the May 24,
2010 elections.
In Dominica, internet content
also appeared to fall under the scrutiny of state regulators when, in a 2005
version of a Broadcast Bill, the term “broadcast” was defined as “the
transmission of radio or video programming to the public on a free, pay,
subscription or other basis, whether by cable television, terrestrial or
satellite means or by electronic delivery
of such programming.”
The issue is replicated among
countries of the Organisation of Eastern Caribbean States (OECS) where a draft
Broadcasting Authority Act has been in circulation in Dominica, Grenada,
St Kitts and Nevis, St Lucia and St Vincent and the Grenadines.
The ACM-led responses to the
draft legislation, which was jointly conceived and introduced by the OECS
countries, focused on what are considered to be conditions inimical to free
expression.
In the case of Dominica’s
version of the OECS Bill, circulated in 2009 for public comment, a Broadcasting
Authority reporting to a government minister was proposed, prohibitive content
restrictions were suggested and authority over internet content envisaged.
As is the case in the other
OECS countries, passage of the draft legislation has been delayed in part
because of criticisms leveled against it by press freedom advocates acting in
concert with the ACM and its international partners.
In Jamaica, with a far more advanced
official infrastructure to monitor the broadcasting industry, the Media Association
of Jamaica (MAJ) was minded in May 2012, on the occasion of World Press Freedom
Day, to express complete opposition to a proposal by the Broadcasting
Commission of Jamaica to extend the reach of its regulations to internet
content.
In Guyana, the government has
repeatedly postponed introduction of broadcasting regulations that would, among
other things, liberalise the sector particularly in the area of radio
broadcasting. This follows a period in which dozens of television licenses were
awarded in the mid-1990s after the ascent of the People’s Progressive Party
(PPP) to power. A state-appointed and operated Advisory Committee on
Broadcasting of dubious legal standing has been responsible over recent years
for the suspension of operations of several television stations for breaches of
operating licenses.
Guyana also poses special challenges in the area of the
allocation of state advertising to private media. In 2007, one newspaper, the
Stabroek News, was targeted for the removal of official advertising following
what was considered to be negative reporting of the ruling People’s Progressive
Party (PPP) during the 2006 election campaign.
The government eventually
reversed its boycott of the newspaper in 2008, but both the Stabroek News and
the Kaieteur News in 2010 reported sharp declines in state advertising as the
adversarial relationship between the government and these newspapers grew. The
Bharrat Jagdeo administration eventually instructed selected state agencies to
advertise and place official announcements exclusively on a state website. The
administration also introduced a regulation related to state procurement
procedures that diverted most state advertising to an online platform not
easily accessed by most Guyanese. The country has an Internet penetration rate
of less than 25 per cent. This provision was eventually reversed following
criticisms that access to information on job vacancies and other opportunities
can be denied persons without Internet access.
The Kaieteur News protested
the move and offered to carry, without charge, selected notices it considered
to be in the public interest.
A Media Monitoring Unit
(MMU), initially established by GECOM in 2006 to monitor compliance with a
media code of conduct in the coverage of elections, but which continued
monitoring of general media content, was shut down by the state in 2011, even
in the face of ongoing financial support from international agencies interested
in promoting the concept of voluntary self-regulation by the media in Guyana. The
development was denounced by the GPA whose president, Gordon Moseley, had
himself been banned from presidential press conferences. A change of president
in 2011 brought the ban to an end, but the Media Monitoring Unit remains
closed.
The issue of voluntary media
self-regulation has been the focus of some discussion in the Caribbean.
A Media Complaints Council (MCC) in Trinidad and Tobago plays a
monitoring role and is run by the media industry and a Guyana Media Proprietors
Association (GMPA) has been launched with, among other things, the intention of
developing its own system of self-regulation.
In Jamaica, there is concern
that a government- commissioned report on reviewing the country’s defamation
laws will be indefinitely shelved after a parliamentary committee appointed to
study its recommendations has failed to return to the legislature with its
feedback after more than three years. A change of political administration in
2011 is yet to yield feedback on the possibility of further parliamentary scrutiny
of what has been recommended.
The report was the product of
a committee, chaired by retired Justice Hugh Small, which in 2008 proposed
sweeping reforms including the abolition of criminal defamation and the
inclusion of a provision for innocent dissemination/responsibility for
publication in the case of “subordinate distributors” of published material.
Criminal defamation continues
to exist on the statute books of Caribbean countries and the offence has been
applied in Grenada and Antigua and Barbuda
within recent years. The ACM has lobbied for its removal from the statutes
books. In April 2012, the government of Grenada announced that the offence
will be removed from the laws of the country.
There is also concern in
Jamaica over provisions of the 1911 Official Secrets Act, amended in 1989,
which have posed a threat to acts of whistle-blowing by persons including, in
2010, a former police commissioner, who claimed to have information on
contentious issues related to the extradition of an alleged drug kingpin, whose
eventual capture involved police and army raids that claimed 70 lives. State
officials were said to be examining the Act for possible breaches by former
Police Commissioner, Hardley Lewin.
In Trinidad and Tobago, a
Data Protection Act was passed in both Houses of parliament in February and May
2012 and provides for an Information Commissioner, interpreted by some to be a
Censor-General, with wide-ranging powers to initiate criminal proceedings
against the press and others for breaches of a variety of offences related to
the preservation of privacy rights identified under the Act. There is the fear
this would have a debilitating impact on the practice of investigative
journalism and impinge on the asserted right to protect sources. Following
strong lobbying efforts by MATT and the TTPBA, there has been an undertaking by
the Attorney-General to have the legislation reviewed.
In most countries of the
region, unstable economic conditions and narrow advertising revenue bases have
led to development of a propensity for self-censorship. Because the state, in
most cases, is the single largest contributor to advertising revenue, political
and commercial concerns often converge to promote an environment in which news
and information not supportive of official programmes is suppressed.
Concentration of ownership in the media and overlapping commercial concerns
also play a role in determining the news agenda in many cases.
In the face of the deepening
financial crisis, economic reconstruction, the debilitating impact of the
narcotics trade, and growing violence and crime, the prognosis is for further
encroachments on the turf of civil liberties.
.JPG)
