A Clash between Aspirations and Current Regulation

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.