mass media in the caribbean || legal constraints and the role of the mass media in a caribbean in...

LEGAL CONSTRAINTS AND THE ROLE OF THE MASS MEDIA IN A CARIBBEAN IN TRANSITIONAuthor(s): DORCAS WHITESource: Caribbean Quarterly, Vol. 22, No. 4, Mass Media in the Caribbean (December,1976), pp.26-42Published by: University of the West Indies and Caribbean QuarterlyStable URL: http://www.jstor.org/stable/23050561 .

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26

LEGAL CONSTRAINTS AND THE ROLE OF THE MASS MEDIA IN A CARIBBEAN IN TRANSITION

A discussion confined to the legal constraints1 on the press is a clear invitation to deal

with law to the exclusion of the fundamental problems facing the mass media2 in a region

which appears to be in a state of political, social and ideological transition.3 This is so be

cause the law exerts a disappearing influence on fundamental social and political issues.

This inherent capacity for obscuring tensions while purporting to aid in their resolu

tion is traceable to the existing paraphernalia of legal definitions and procedure which,

while they may be of use, are basically designed to denaturise social and other issues by

imposing on them a one-dimensional aspect. It is only when this denaturisation is ac

complished that a tribunal trained only in rules of law can confidently assume competence over matters the substance of which is far removed from that of legal rules.

The law of necessity exerts this disappearing influence because its rules are not de

signed to get at the root of, and eliminate social problems. The rules are there as aids to

be used by tribunals when dealing with isolated incidents which may trace their causes to many deeper social problems.5

It is possible, therefore, to view the laws governing the mass media not as rules provid

ing clear and ascertainable solutions to problems, but as aids towards reaching a compro mise in the face of the tension which arises between the demand for free expression on

the one hand, and on the other the claims made in the interest of public order, public

morality, individual reputation and other legally recognised competing interests.

The existence of laws governing press operation is clear evidence of the existence of

this tension. In fact the constitutions of most independent and semi-independent Com

monwealth Caribbean countries capture the tension as graphically as possible by provid

ing in the same section a freedom of expression clause followed by a derogation clause.

With the exception of Trinidad where press freedom is separately guaranteed6 many Con

stitutions provide as follows.

"Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purpose of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information with out interference.

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 provision

(a) which is reasonably required

(i) in the interest of defence, public safety, public order, public morality or

public health; or

(ii) for the purpose of protecting the reputations, rights and freedoms of other

persons, or the private lives of persons concerned in legal proceedings.. ."7



27

It must be noted that no express mention is made of the 'press' or 'press' freedom. The

fact that "freedom of expression" is interpreted to include the "freedom to receive and

impart ideas and information without interference" should be conclusive evidence that

"freedom of the press" is part of the right of free expression. This freedom is another

name for the right enjoyed by a single individual or collection of individuals "to impart

ideas and information" although it is done in a more organised manner and on a grander

scale by the use of print and electronic media. In this way "the capability for collecting,

and disseminating information is far greater than that of the individual acting on his own". In addition the scope for influencing opinion is equally tremendous.

Notwithstanding the augmented aspect of the right to free expression when considered

in the context of the mass media, it is clear that the law accords the press no higher right

than that enjoyed by the individual citizen.9 This is the case, even where freedom of the

press is expressly guaranteed. This express guarantee affords the press no substantive ad

vantage. However, it is a constitutional recognition of the significance of the press as an

important social institution.10 Another merit of specific mention lies in the fact that it

puts the constitutional status of the press beyond argument and precludes the objection

that the right to free expression is guaranteed only to natural persons and not corpora

tions.11

It is important to note that many people in the independent countries have taken the

constitutional guarantees seriously. They have asserted their rights against governmental

encroachments. They have demanded justification for their abridgment, redress from the courts in accordance with the literal interpretation of the Constitutions, and undertakings

that legislature and the executive refrain from future infringement.12

But within 10 years after independence and while the people are getting more and more

conscious of their rights the fire of 19th century libertarian principles, kindled at inde

pendence, has gone out in the breasts of the fathers of the peoples' Constitutions.13 Herein

lies the deep constitutional dilemma.

It is a dilemma because while some political leaders are challenging14 the relevance of

the constitutional principles which they had presented to their people as the charter for

securing democratic government, members of the public are challenging the position of

these leaders and citing the law as their authority.

The confrontation is illustrated by excerpts from the speeches of a Guyanese politician

and a Guyanese journalist on the topic of press freedom.

With obvious reference to the Guyana Constitution a political leader is quoted as

saying: —

"As much as we might like, we cannot simply import the libertarian ideas and con

cepts of press freedom first voiced by men like Descartes, Locke and Milton, into

countries such as ours without examination ..." 14

The journalist, on the other hand, was affirming his faith in the law governing the press in

his country. He expressed the belief that

"the media (in Guyana) still has a great measure of freedom.... It is part of the

packet of Fundamental Rights, which inheres in the national Constitution. . . ."15

He conceded however that the press was subject to legal restraints—"the laws of defam

ation-libel, slander and so on... ,"16 and continued to assert that as far as he was aware



28

"[the] constitutional and legal constraints are the only ones which recognisably and properly dictate the content of the local media. That, as I see it, is the legal

position . . .17

In another part of the Caribbean18 a political leader was implying that these traditional

legal limitations leave the press with too wide a field of action. He is quoted as saying:—

"The freedom for people to write . . . whatever they feel to write, even given the

limitations in metropolitan countries that provided you don't libel people and pro

vided you don't write sedition and provided you are not scurrilous ..." 19

is an arid right which cannot be accommodated in the Caribbean frame of reference.

At present the main issue seems to revolve around the definition of the role of the mass

media in developing societies. Secondary to this, is the question of the adequacy of the

present law as an instrument for delimiting the boundaries of proper reporting and effect

ively controlling the media.

These are important issues because they stem from the fact that Caribbean political

leaders have appreciated that "the media have become a most influential factor on citi

zens' Opinion and the regulation uses or abuses of media are important considerations

within the State"?0 These leaders are not satisfied that the actions of the media are

subject only to the laws of libel. They are asserting that the press is under a duty to com

mit itself to the support of national developmental goals whether they are planned within

the context of the existing capitalistic structure or a projected socialist undertaking.21

This is a constitutional question according to whether commitment to national goals is defined so as to restrict what can be said about a government's policy. It is a constitution

al question because, if indeed commitment to national goals is a restriction, those who

view the role of the press as subject only to legal restrictions will inevitably look to the

law for guidance on this matter.22 This legalistic approach cannot be condemned without

due consideration because the law would serve no purpose if men did not take cognisance of it in planning their affairs.

Secondly, the Constitution would be reduced to nothing if it did not compel the con

fidence of the people in whose name it was promulgated, and on whose behalf the safe

guards were entrenched. This confidence is the basis for reliance on its provisions.

Thirdly, the integrity and credibility of the drafters would be seriously impaired if it could be said that the safeguards entrenched in the Constitution should not be interpret ed in accordance with the interpretation which had captured popular support at the time of independence.23

The legalist would conclude that with respect to any limitation not recognised by the Constitution the government is morally and legally estopped from adding a condition which reduces that limited sphere of freedom which is constitutionally guaranteed.

But it must be noted that confidence in the law is a luxury which can only be afforded

by those whose interest the law recognises and protects. This statement is not restricted

to the constitutional debate over press freedom but applies wherever the law exerts a con

trolling influence24Ilowever in the context of the press freedom controversy, the constitu

tional debate is keenest in those territories25 where national goals are based on socialist

policies which seem to run counter to capitalistic goals. But even in those territories which

appear committed to a continuation of capitalism in its undiluted form,26 there is deep



29

tension manifesting itself in the passing of laws to control the press.

A regional survey will disclose two approaches to regulation of the media:

(1) Where law is being used to add new restraints27

(2) Where non-legal methods are being used.28

Antigua, Grenada and St. Kitts-Nevis-Anguilla have recently passed laws imposing new

restrictions on the press, more specifically newspapers. The laws of Antigua29 and Gren

ada30 which provide for relatively excessive licence fees and deposits prior to registration,

evidence a lack of understanding of the true nature of the problem facing these countries.

They are restricted to making provision for satisfying judgment debts for libel, should a

newspaper be sued and judgment is given in favour of the plaintiff.30 They do not touch

that aspect of the problem which is subterraneous to the law and pertains to the imposi

tion of restrictions on a perfectly legal preoccupation: the media's role as general critic of

the government and unofficial ombudsman.31

In St. Kitts, the true nature and scope of the problem had been perceived and openly

articulated by that country's Attorney-General long before it was recognised in either

Guyana or Jamaica.32

St. Kitts has attempted to deal with the problem by legislation33of a type different

from those of Antigua and Grenada. Guyana has opted for government ownership33aand

in Jamaica there appears to be a commitment to the use of 'moral suasion'.34 In these

three territories governmental action is based on a repudiation of the traditional role of

the media and an attempt to impose a re-definition of this role within the context of the

existing law.35

It is necessary now to examine the role3of the press as seen by those committed to the

ideal of press freedom.

The role of the press is dedicated to the performance of the following functions: in

form, entertain, act as unofficial ombudsman,37 and to make profits for the owners.38 The

first three functions are to be performed bearing in mind the overriding economic func

tion. The telescoping of these functions is nowhere better recognised and illustrated than

in a recent Advocate-News editorial where it was asserted that a newspaper's responsibility

to the community is subject to the overriding

"responsibility the editor has to . . . his publisher [and] to the shareholders." 38

It must be noted that in theory39 the press in the Caribbean is viewed as having a role

identical with the press operating in metropolitan centres.40 This is not surprising in view

of the fact that the thought patterns of our people have been the result of an education

al process designed to foster a certain type of community ethos foreign to our conditions,

our legal culture is structured on rules of law fashioned for use in other countries; and our

economic systems are appendages of foreign systems and the press forms part of this

economic system which it supports. In addition, the constitutions were designed to secure

the continued domination of foreign paradigms.41

Consequently the necessity for a re-appraisal of the role of the press in the context of 42

West Indian underdevelopment has never occurred to the traditional press. Indeed, it is

considered a heresy to argue that any definition of press freedom must be relative to the

environment within which the freedom is to operate. Hidden in this suggestion is the



30

statement that there ought to be a different standard set for the press in the Caribbean.

More crudely stated, the implication is that the press in the Caribbean should be less free

than the press in England or the United States. Supporters of traditional43 press freedom

find this objectionable.44 They find such a suggestion objectionable even if it is couched in terms of "constructive and creative" reporting or having "developmental perspectives",

or there must be a redefinition of what is news or the need for "responsible journalism" or development support communication45 Such language is interpreted as asking all news

papers to adopt a perpetually pro-government stance.

It is at this stage when certain factors are examined that certain great contradictions

will emerge into the light. After the contradictions are identified it may be easier to deter

mine that there could be merit on both sides. The question must necessarily be asked:

how can any Caribbean government secure commitment to development goals in the face

of any one, or a combination of the following:

With respect to the press

(a) the press commitment to the traditional position that the law defines the

media's sphere of action and after subtracting what is defamatory, obscene,

seditious, contemptuous47 etc. the constitution guarantees absolute freedom

albeit in a restricted sense.

(b) Private ownership of newspapers and the profit motive48

(c) The multi-party system and party organs49

(d) ideological commitment to foreign paradigms—personnel professionally educated in metropolitan centres.*

(e) the role of the press as a kind of unofficial ombudsman.50

(f) the recent success scored by the U.S.A. press with respect to Watergate.

With respect to the institution of government as known in the region from time im

memorial.

(a) Little evidence of practical commitment to greater responsibility; collective

and individual integrity; responsiveness to community needs;

(b) A history acquainted with unfulfilled promises (c) intolerance of criticism and allegations of victimisation

(d) public business has been shrouded in secrecy; no use of the press in terms of

development support communication

The press, with one or two isolated instances, has been very law-abiding. This law-abiding nature is directly related to the fact of foreign ownership where it exists and the all

pervasive commitment to foreign professionalism. Except where a newspaper can be cate

gorised as the organ of an opposition political party, its economic function precludes its

functioning as an unofficial ombudsman to the community it serves.

A distinction has to be made between newspapers that are profit-oriented and those

that are propaganda-oriented.53 The first category comprises businesses which have "no

more interest in the community than the producers of any other product".54 They sell

news and advertisement and their editorials draw attention to unsafe roads, walls, high taxes, inadequate housing facilities, unemployment problems, illiteracy and other issues.. ."5

The riskier business of investigative reporting is carefully avoided. However, self-interest forces these newspapers to impose the severest form of self-censorship.56



31

The party organs have censored themselves to the extent where the line between bias

and inaccuracy becomes blurred. Their self-censorship is equally grounded in self-interest.

However, their continued existence is a sign of the continuation of the two-party system.

But there is nothing illegal about self-censorship. Indeed the stringency of the laws on

defamation imposes a measure of self-censorship over and above what is required to keep

within the bounds of the law.57 The point which is being emphasised is the fact that the

press in the Caribbean has not been functioning in the public interest. Class and party

interests58 have more often than not been the motivating factors. It is therefore a contra

dictory position to invoke the public interest which has been disserved in support of a freedom which has been forfeited by self-censorship and disuse.

Another contradiction is that while the press finds the call for redefinition in terms of Caribbean perspectives objectionable, in practice a redefinition has already been accom

plished. It cannot be seriously argued that press freedom in the Caribbean is the same as

it obtains in the U.K. or U.S.A. Another contradiction is here revealed: if the independent press has been minding its business why the widespread attempt to redefine a role which

has already been redefined?

But is time being wasted in the arena? Where is the constitutional debate? These are

valuable questions for a variety of reasons: Firstly questions of law have a way of reced

ing when the fundamental issues are being examined. Secondly a conclusion can be stated

in the following terms:

a newspaper which has imposed upon itself a policy of rigorous self-censorship for

reasons which converge on economic self-interest has little to complain about when

government imposes such a role on it.

Thirdly there is no question of constitutional law when what is in issue is actual or threat

ened political brute force.

The basis for objection will however become clear when it is realised that the role

some governments are inviting the media to adopt, though qualitatively similar to their

present role, may be protective of other interests not identical with the narrow interests

which were hitherto exclusively served.

This is the heart of the matter when one is dealing with the role of the press in a society

which is in transition from capitalism to socialism, and when one considers that the press59

represents the views "of a small minority who have a monopoly on economic surplus pro

duced in the society."60

However, the fact that the press never fulfilled its role as guardian of the public inter

est either because of self-interest,61 or the fact that it had equated its interest with the

interest of the majority of people, does not signify that it cannot repent and face up to its

responsibility. But will it get that second chance?

People in this region have been taught by history to be wary of verbal commitments to

greater responsibility, and collective and individual integrity62 in government. Although

the press, mainly but not solely out of fear of actions for defamation never did much to

bring this to popular awareness, whatever little was done, was often greeted by unfavour

able governmental reaction. Governments only tolerate constructive criticism and critic

ism of government is not constructive by the very fact of being criticism of the government.



32

Another major contradiction seems to lie in the fact of repudiation63 of a constitution

after having tendered it for popular acceptance. If it is assumed that genuine belief in the

provision has given way to an overriding genuine belief in the present irrelevance, then the

contradiction while not disappearing is not as menacing.

So there is fault on both sides. But the press can pray in aid the law64 in stating its

case. It can choose to assert that the governments' requirement of development support is

undermining of its watchdog function65 and so can have far-reaching implications for the

public welfare and as such, is unconstitutional.

The governments can assert that their position is based on the recent discovery that

the constitutions as charters for the maintenance of capitalism represent a mistaken view

of how to achieve the national goals.66 Therefore, reliance on constitutional rights is

reliance on outmoded theories.

Indeed the governments' argument can be buttressed by the assertion that the constitu

tional rights are enjoyed by all as a matter of theory but in practice they operate unequally to maintain a system of shameful inequality.67 Also, the entrenched rights constitute an ob

struction to governments' 'social engineering' policies designed to alleviate the situation

of the impoverished masses of people.68

The situation does not call for constitutional amendment. It calls for a radical departure

from orthodox political action within a capitalistic democracy. As Mr. Michael Manley, Prime Minister of Jamaica, would say, it needs more than just 'tinkering'.69 It needs a

change from capitalism to socialism or democratic socialism.

So the problem is undergoing a metamorphosis and its true identity will shortly be re vealed: It is not now a question of whether certain business organisations, e.g. the press,

will be required either by law or by sheer political brute force to support the governments

willy-nilly. The question is whether the press or any section thereof with its present

organisational form and modus operandi can be accommodated in the socialist environ

ment where private ownership is minimised or eliminated completely.

With respect to party organs the fate of these is tied to the fate of the multi-party

system. The problem comprehends not only freedom of expression but how this freedom

can be given effect to by the right to associate with political groups of one's choice. This is the most important avenue through which expression can be channelled. In fact it is the

most powerful form of public expression.

In Guyana at least, the die has been cast and the major newspapers have been acquired

by the government.70 But in view of the press record the distinction between private and

government ownership is of little significance. The chief political reporter of the Guyana Graphic rightly points out that "local private ownership is no guarantee that as a com

munication system ... the media will be used to support the development thrust.. . ,"71

In St. Kitts the Press and Publications Board Act72 makes it mandatory for newspapers to function in the "national interest."73

In Jamaica the position of the press is more uncertain.74 While no repressive laws have

been passed, and Government has repeatedly given the assurance that there is no intention

to take over the press, the newspapers are under fire from the government and its party.

Representatives of the Jamaica press seem to be taking heart from Mr. Manley's definition



33

of the role of the press and there seems to be hope that the transition from capitalism to

democratic socialism will be accomplished "without chains".75

But the governments can also argue that too great a preoccupation with the constitu

tionally selected rights can result in overlooking the fact that there are other rights which

though directly related to the right to life are not given constitutional recognition.76 If in

deed the transition period could culminate in a truly egalitarian society77 which while

offering some less than what they presently have, will offer something in the line of better

living standards—adequate housing, food, health care, etc.,—to the many who have no

thing, giving up a negative freedom may not mean inevitable disaster.

Our libertarian conditioning will cause the lurking question to surface: without know

ing why some established socialist governments frequently resort to imperialist wheat78 can

we be assured that our future socialist governors will acquire the infallibility for which the

older ones are still striving? Will they suddenly become omniscient and beyond accepting

the suggestions, scrutiny, advice, warning, public admonishment, censure that an inde

pendent press acting in the public interest can supply?

This need not be an 'adversary role'. Indeed it is part of the 'supportive role'79 which is

necessary in view of the fact that the governments have impliedly accepted that they are

prone to misunderstanding national requirements and the means of securing national goals.80

Mr. Manley of Jamaica has accepted that part of the role of the press "in a developing world" will "necessarily (be to) subject both the men who wield power and the institu tions through which power is expressed to constant scrutiny and evaluative judgment

which can only be in the interest of the community."81

If these words can be taken at face value, it means that there is a role for an independ

ent press in socialist Jamaica, but on the terms offered by Mr. Manley.82

But in fairness to the press, the laws of defamation83 and contempt84 militate against

such a position. As has been said in another jurisdiction:85

"Whatever is added to field of libel is taken from the field of free debate." 86

Mr. Manley not only asserts that the press

"should be alert to corruption and quick to uncover suffering and always on guard

to challenge a society to excellence" 87

but he thinks that "this can be accomplished within the context of the present organisa 88

tion of the press."

The role which Mr. Manley thinks the press should play "may well include vehement,

caustic, and sometimes unpleasantly sharp attacks on government and public officials"89

and "erroneous statements [are] inevitable in free debate .. ."90

The question to ask is whether the Jamaican government is "commit [ted] to the prin

ciple that debate on public issues should be uninhibited, robust and wide open" and

and that it may well be discussion which leaders and other officials find unpleasant at

times." 91

But Mr. Manley is not unaware of the difficulties inherent in the pursuit of a goal such

as he has defined. In his book The Politics of Change92 he asks:



34

"Where is the dividing line between the rights of the press to its freedom as one of

the main instruments by which a free society protects itself against totalitarian en

croachments, and the claims of social responsibility?"93

However difficult it is to define "social responsibility''^ Mr. Manley sees this amorphous concept as the price the Jamaican press must pay for its freedom. In fact he sees no in

evitable antithesis between "commitment to freedom" and the "search for change". He

says:

. . to those whose commitment to freedom implies a desire for change as to those

whose search for change is pursued in the name of freedom, it is vital that the press remain free and accept the duty of responsibility as the price of that freedom."

He warns that the press could lose its freedom should it choose not to take up the chal

lenge of 'social responsibility' and there could be a confrontation

"between change.... Where the confrontation takes place, freedom is the casualty."96

It must be noted that Mr. Manley's packet of 'social responsibility'97 includes "alert ness to corruption". It is submitted that the present state of the law of defamation pre cludes any significant alertness to corruption in public office. This becomes clear when it is realised that the two most important defences available to a defendant in a libel action

depend on proof of truth for their success.

The defence of justification98 can only succeed if the defendant proves the truth of

the facts alleged to be defamatory. Also the defence of fair comment99 requires proof that the facts which form the basis of the comment are true.

The requirement of proving truth puts an unnecessary damper on public debate of

public issues.100 The danger of this requirement has been adequately summarised as follows:

"A rule compelling the critic of official conduct to guarantee the truth of all his

factual assertions—and to do so on pain of libel judgements virtually unlimited in

amount leads to a comparable self-censorship. Allowance of the defence of truth

with the burden of proving it on the defendant, does not mean only false speech will be deterred. Even courts accepting this defence as an adequate safeguard have

recognised the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars."100

Under these rules the words falsehood, dishonesty, truth etc. are emptied of their real content. Existing falsehood and dishonesty, by a legal process, are converted into truth and honesty because of absence of proof. This position has been very ably summarised by the U.S. Supreme Court:

"Under such a rule, would-be critics of official conduct may be deterred from voic

ing their criticisms, even though it is believed to be true and even though it is in fact

true, because of doubt whether it can be proved in court or fear of the expense of of having to do so. They tend to make only statements which "steer far wider of the unlawful zone."101

In addition, the press does not enjoy any privilege with respect to comment on candidates for election. The law of defamation restricts public discussion of candidates at elections.102

The position is presently very serious in view of the fact that at no time can the governed debate freely the conduct of either their governors or would-be governors. With

respect to popular debates on candidates for election to public office, it has been recog nised that



35

"it is of the utmost consequence that people should discuss the character and quali

fications of candidates for their suffrage. The importance to the state and to society

of such discussions is so vast, and the advantages derived are so great that they more

than counterbalance the inconvenience of private persons whose conduct may be

involved and occasional injury to the reputations of individuals must yield to the

public welfare, although at times such injury may be great. . . 103

In order to secure integrity among the governors the U.S. Supreme Court has held that

the governed enjoy absolute priviliege to criticise their governors. This privilege is "quali fied to this extent: anyone claiming to be defamed by the communication must show

actual malice or go remediless. This privilege extends to a great variety of subjects, and in cludes matters of public concern, public men, and candidates for office."104

It is submitted that the law presently in force in the Commonwealth Caribbean reflects

"the obsolete doctrine that the governed must not criticise their governors" or would-be

governors.105 This law should be changed so that all holders and would-be holders of pub

lic office would not continue to be effectively shielded from public scrutiny while being paid from public funds.106

No one can seriously argue that the Caribbean's present state of underdevelopment re

quires in fact a lower standard of integrity among its leaders and public officials by virtue

of its underdevelopmentl07On the contrary it can be argued quite forcibly that with the

limited available resources and the great need to redress the existing imbalance in wealth

the standard of integrity required in public officials should be higher than that expected in developed societies.

Conclusion

It is clear that there is an unusual consensus among Caribbean leaders that press free

dom in the Caribbean is circumscribed by more than the traditional legal restraints and in the words of Mr. Manley "the press is going to have to recognise that its freedom is sub

ject to an overriding concept of general social responsibility."108

This "concept of general social responsibility" may appear to be nothing more than a

conceptually refined way of asking for a quiescent press. Mr. Manley's attempt at articul

ating some functional aspects109 of this concept seems to preclude such a quick conclu

sion. But when it is noted that the present law of libel is a potential cover for corruption

by effectively limiting public debate, there is a legal limit to how far the press can "be alert to corruption and quick to uncover suffering ... and ... challenge a society to ex

cellence."110

It has also been shown that the economic press has been too preoccupied with its

economic functions and even within the legal limits has ignored its social function.111 What

therefore is the justification for the concerted political attack? As has been said recently

"If the media in the region can be called irresponsible at all, then they can only be

deemed so in respect of their obligation to the public."

In the other territories113 the debate remains a live issue. It is a matter of time however,

whether the Jamaica press will (if it can), adopt the position being articulated by Mr.

Manley.

But in the ultimate analysis whatever type of press is pressured into existence as a

result of law, or imminent or actual political force, two things remain clear.



36

■ First the Caribbean people have been the victims of perpetual exploitation and it seems

impossible for worse to come. Secondly although there has never been a dynamic press

too great a reliance has been placed on it.

There is a limit to what the most crusading press can accomplish. The press is not a

successful replacement for popular vigilance, although it can aid in its creation and main

tenance.

No better summary of the people's role can be given than the following quotation

from Manjak:

"Finally the people themselves must show their concern about national issues (such

as) restriction of the freedom of the press .... Unless the people respond in a

tangible way to the need for dire change and mobilise themselves .... then the

future of our peoples remains very dismal indeed."114

A people cannot successfully delegate the duty of vigilance to the press or their courts.

The price of freedom still remains the eternal vigilance of the people. The most that the

mass media can do is to help to create an awareness for the need of self-reliance, and vigil

ance, and to help in sustaining this awareness.

But whatever the goals to be pursued, and whatever the strategy for the achievement,

in the context of the Caribbean the fact still remains that

". . .. repression breeds hate;. . . hate meances stable government;. .. the path of

safety lies in the opportunity to discuss freely supposed grievances and proposed remedies . . . ,"us

Finally, if freedom of expression is considered as irrelevant to and irreconcilable with feeding, clothing and housing the masses, it must be remembered that after mouths have

been fed, bodies clothes and sheltered, there will remain the need to satisfy that indestruct

ible quality of the human spirit which is always in search of self-assertion and individual

fulfilment. Freedom of expression, in the ultimate analysis, is relevant to humanhood.

DORCAS WHITE

FOOTNOTES

1. For a full exposition of the laws relating to registration and operation of newspapers see

White, Dorcas, The Press and the Law in the Caribbean (a paper read at a workshop on the theme: Caribbean Women. Communication for Development held at Mona Campus, U.W.I., in Jamaica from June 13-15, 1975) passim.

2. For a definition of the term mass media see Brown, Donald E., How America Gets Her News (1967 Rand McNally & Company) p. 5.

3. Socialism as a political and economic ideology seems to be gaining wide acceptance and has been officially accepted in Guyana and Jamaica. See Manley, The Politics of Change (Andre Deutsch) passim esp. at pp. 108-113 where Mr. Manley criticises the Marxist economic theory and points out certain misconceptions.

4. Hence the need for expert evidence which the judge or jury is at liberty to ignore.



37

5. For the Jamaican case of R. v. Williams (1970) 16 W.l.R. 63 at p. 65 for an illustration of this

point. In giving the judgment of the court Shelley J.A. said inter alia -.

"The appellant is illiterate. He lives with a mother, who according to the Probation

Officer, lacks the discipline and responsibility to offer the type of guidance he needs. His father's whereabouts are unknown. His mother appears to live in deplor ably poor conditions. The area where she lives is untidy and insanitary, and her home appears to be inadequate for a fairly young mother and an adolescent son. The lad is unemployed. He has no strength of character and is easily swayed. This is his first conviction.

It seems clear to us that in this case imprisonment with hard labour and flogging may have a detrimental effect upon the character of the appellant, far exceeding any deterrent effect. .. His conduct was in the learned trial judge's view abomin able (robbery with aggravation) but this is not surprising having regard to his back

ground one must not expect a silken purse from a sow's ear. We think that the

society that permitted him to develop the sort of character from which his present predicament has resulted, ought not, even at this late stage, to miss an opportunity to direct him in the right way rather than to destroy him with a long term of im

prisonment amongst hardened criminals, and to debase his body by beating him . . . We therefore ... set aside the sentence and order the appellant to enter into recog nisances in his own surety in the sum of twenty dollars, to be of good behaviour and to keep the peace for a period of three years and to come up for sentence ... if and when called upon so to do."

It must be noted that while the court was empowered to use its discretion to relieve the

appellant from the rigours of a long prison term and whipping after considering all the circum

stances, there is nothing else that is within the limit of the court's power.

6. Trinidad and Tobago Constitution S. 1 (k).

7. (Emphasis added) Jamaica Constitution S. 22

Guyana Constitution S. 12

Barbados Constitution S. 20

Bahamas Constitution S. 23

8. White, ibid., at p. 3.

9. loc. cit. See also Ambard v. A.G. for Trinidad and Tobago [1936] A.C. 322 at p. 337 where Lord Atkin makes this point with respect to the press in the then Crown Colony of Trinidad. It is submitted that the express guarantee of press freedom in the Constitution has made no

distinction. See on this White, ibid., at pp. 2-3.

10. White, ibid., at p. 3.

11. The majority of the West Indies Associated States Court of Appeal rejected the argument based on this objection. See 4.G. of Antigua & Minister of Home Affairs v. The Antigua Times Ltd. Civ. Appeal No. 4/1972. See White, ibid., at p. 37 note 7.

12. E.g. Collymore v. A.G. (1967) 12 W.l.R. 5, Jaundoo v. A.G. (1967) 12 W.l.R. Note the

popular outcry which the Government of former Prime Minister Errol Barrow provoked with

the amendment of the Barbados Constitution.

13. In Jamaica the JLP now in opposition led the country into independence. On the other hand

it could well be that the Constitutions were imposed by the Imperial Parliament who thought it fit to fetter the newly independent legislatures in a manner in which the Imperial Parliament

is not itself fettered.

14. See the report of a speech by Mr. Kit Nascimento, Minister of State, Office of Prime Minister

of Guyana, in Caribbean Contact Vol. 2 No. 9 Dec. 1974 at p. 14 especially at para. 1 of

column 2. See note 14 and text referred.

15. Ibid, at p. 15.

16. loc. cit.

17. loc. cit.

18. St Kitts-Nevis-Anguilla: See note 19. See also Manley, ibid, at 193: "The laws of libel and

decency have long since made the freedom of the press subject to certain defined rights of



38

the individual. Equally, the press is going to have to recognise that its freedom is subject to an

overriding concept of general social responsibility."

19. Caribbean Contact ibid, at p. 11.

20. Claudette Sutherland, Media, Law and Society: The Jamaican Context, LL.B. thesis (unpub.)

21. See Notes 14, 18 and 19 supra.

22. As Mr. Hurbert Williams, a Guyanese journalist, clearly did. See his very impressive address re

ported in Caribbean Contact ibid, at p. 15. Mr. Williams evidently in a mood for symbolism

appeared before his audience clad as a tramp to demonstrate that the Guyana press was in

"tatters" as a result of extra-legal pressures.

23. See e.g. Verbatim Notes of Proceedings of Meeting on Draft Constitution held at Queen's

Hall, Port of Spain 25-26th April.

24. This is important especially in the Commonwealth Caribbean where law in the popular aware

ness means criminal law.

25. Jamaica and Guyana. On the Jamaican position see Manley, ibid., passim. On the Guyana scene see Cheddi Jagan, The Mass Media in Guyana, Thunder Jan.-March 1973, pp. 4-17. See Note 28 infra.

26. E.g. Antigua, Grenada, St. Kitts-Nevis-Anguilla.

27. Antigua, Grenada, St. Kitts-Nevis-Anguilla.

28. That is, in addition to existing legal restraints. See a report on the Guyana situation compiled by Dr. Everold N. Hosein after a survey in December 1974. In a territory such as Montserrat the press is an entirely innocuous institution.

29. The Newspaper Surety Ordinance (Amendment) Act 1971 and the Newspaper Registration (Amendment) Act both of which were upheld as valid by the Judicial Committee of the Privy Council in the Antigua Times Case where it was held not to be unconstitutional to make it

mandatory to obtain a licence after payment of a licence fee and deposit of $10,000 to satisfy libel judgments. See White, ibid, at pp. 7-8.

30. Newspaper (Amendment) Act 1975 which provides for a mandatory licence fee of $600 and a

deposit of $10,000. See White, ibid, at pp. 7-8 for a documentary of newspaper comment on the Grenada Act.

31. One has to distinguish the economic section of the media which does not fulfil this role to

any significant extent The economic sector of the media comprises newspapers, radio, TV and Rediffusion which are either private-owned or government-owned. The government-owned section usually has a propaganda role in favour of the government. The Opposition section comes closest to playing the role of government critic and unofficial ombudsman. In many cases there is usually a third force sector (which expresses dissatisfaction with both the tradi tional economic and propaganda sectors), e.g. Tapia in Trinidad; Afro-Caribbean Movement Outlet in Antigua; Abeng in Jamaica; Manjak in Barbados. Manjak is the newest 'third force'

newspaper. It accuses the established media "of showing a studied lack of analysis and treat ment of crucial local and regional issues." See Manjak No. 10 September/October 1975 p. 5 article captioned The Sorry Position of the Press. See The Nation Vol. 2 No. 52 Nov. 30, 1975, Special Independence Issue, at p. 9 where an article by Mr. David Renwick, editor of the Trinidad and Tobago Express makes reference to the fact that the press in Trinidad has

played the role of "unofficial ombudsman" to Trinidadians. Mr. Renwick while denying the existence of any threat to press freedom in Trinidad seems to equate involvement in

'complaint journalism' as he calls it as being equivalent to the press ombudsman role. For the latest and most useful example of "complaint journalism" in the region see the Jamaica Daily Gleaner p. 1 "Action Station".

32. See Note 18 supra.

33. Press and Publications Board Act 1971 which sets up a Board in one respect analogous to the

English Race Relations Board under the Race Relations Acts 1965 and 1968. The PPB is not a true analogue to the RRB since the former in addition to its powers of conciliation, can not

bring an action but can recommend to the Attorney-General the need to take steps to bring



39

criminal prosecution under the Act. In addition it has powers to suspend people from writing,

request security, recommend the deportation of non-belongers etc. See White, ibid, at pp. 30-35 for a discussion of the PPB's powers.

33a. See ibid, passim. See also The Nation Vol. 2 No. 52 Nov. 30, 1975 p. 42 article by Mohammad

Hamalludin, Chief Political Reporter of the Government-owned Guyana Graphic.

34. At least for a start. See Manley, ibid, at pp. 191-195. See also J. C. Proute, Change Without

Chains, an article featured in The Nation ibid, at pp. 41 and 45. Mr. Proute, who is editor of

the Jamaica Daily News, tries to put Mr. Manley's thinking with regard to the press in Jamaica

in perspective.

35. See Notes 14 and 18 supra.

36. See Brown, ibid, at pp. 16-22 where Professor Brown lists six functions as comprising the role

of the press:

(1) to inform;

(2) to present the news in an attractive manner;

(3) the 'opinion function';

(4) entertainment function;

(5) service function—recipes, hobbies and how-to-do-it, doctors' and other experts'

columns;

(6) economic function.

The information function could comprehend functions (2) and (5) which it is submitted are

not independent functions in their own right pace Prof. Brown.

37. Not only with respect to individuals but to classes of individuals and the interest of the major

ity of people. See Note 31 supra.

38. Prof. Brown's 'economic function'. See Note 36 supra. See Advecate-News Wednesday June 4

1975 editorial page. The editor states that this responsibility extends to the editor "and to the

scores of people employed in the operation who could well find themselves out of work and

out of bread for their families if the 'fearlessness' of the editor and those in decision-making

positions under him, should lead to a newspaper being found guilty of a big enough libel to

close it down." In the same editorial the editor writes: "A newspaper has a right to inform the

people but it also has an obligation to respect the Jaws of the land." Paying out money to

satisfy libel judgments is definitely inconsistent with the economic interest of the shareholders

et al.

39. While the press finds objectionable any suggestion that press freedom in the Caribbean should

be different from what that concept entails in metropolitan centres the press has in many re

spects voluntarily curtailed its freedom. See Manjak, ibid, at p. 5 where it is said that "the

press men, making bilious noises for more freedom, are themselves exercising various forms of

censorship. On the one hand the Advocate blatantly refuses to print certain articles, the

Nation on the other takes unduly long time (in some cases a matter of months) to publish cer

tain articles thus nullifying their erstwhile topical significance." The Nation also refuses to

print letters to the editor unless signed by the writer using his real name. This, it is submitted,

deprives the public of useful opinions written by people who for good reasons wish to remain

anonymous.

40. See notes 16 and 17 supra.

41. Cf. Manley, ibid, at pp. 138-161.

42. This could be traceable to the fact that many journalists and reporters have been trained in

metropolitan centres. The Institute of Mass Communications was established at the University

of the West Indies to train journalists. See Contact, ibid, at p. 16 for an article by Marlene

Cuthbert, Lecturer in Mass Communications, under the caption "Our Media must be Different

From that of U.S.A. and U.S.S.R." A Press Council has recently been set up to act as a dis

ciplinary body for the region's press.

43. The orthodox view is that the press should be subject only to the law. See Notes 15 and 16

supra and accompanying text.

44. See Caribbean Contact Vol. 2 No. 9, December 1974 p. 15, and also the articles on pp. 12-13.



40

45. See The Nation, ibid, at p. 9 where David Renwick dismisses Guyanese "development support communication" as "restrictive nonsense". For an explanation of what is Development Sup

port Communication (DSC) see a paper by Dr. E. Hosein, Development Support Communica

tion and its Application to the Caribbean published in Caribbean Women in Communication

for Development (ed. Marlene Cuthbert) pp. 48-61.


47. See White, ibid, at pp. 8-30.


49. Party organs are committed to supporting their parties and sometimes would blindly oppose national goals merely for the sake of opposition. On the other hand the government party organ would equally blindly support a policy which is obviously ill-timed and pointless.

50. Commitment to development goals need not be in any way an antithesis to this function al

though there is difficulty in seeing the two roles in peaceful co-existence. Presently only party organs could be said to be approaching the role of unofficial ombudsman.

51. Cf. what Mr. Ken Gordon, president of the Caribbean Publishers and Broadcasting Association

(CPBA), has to say on press freedom and Watergate in The Nation Nov. 30, 1975 p. 43.

52. Cf. Manley, ibid, at p. 69; and cf. Manjak No. 11 (Special Anniversary Independence Issue)

p. 1 "Promises! Promises!".


54. See my statement reported in the Jamaica Daily Gleaner June 17, 1975 at p. 20.

55. Cf. Wilson, Using the Print Media to Project the Problems of the Underprivileged published in Caribbean Women in Communication for Development (ed. Marlene Cuthbert) p. 25.


57. See New York Times v. Sullivan, 376 US 254 (1964).

58. The party organs as well as the economic press are usually championing sectional interests.

59. Economic press.

60. Wilson, ibid, at p. 25.



63. See Note 14 supra and accompanying text.

64. Especially the law of defamation.

65. It is irrelevant that it has not been functioning as such.

66. In so far as the governments are rejecting capitalism as a solution.

67. Cf. Manjak No. 10 September/October 1975 p. 2: "It is idle to talk of rights to property in a situation where the vast majority have no opportunity to enjoy this right."

68. The fact that reasonable compensation must be paid when land is acquired compulsorily puts a government initiating agrarian reform at a disadvantage. The Trinidad and Tobago Govern ment had to resort to a special constitutional majority to pass National Insurance legislation.

69. Manley, ibid, at p. 23.

70. See Note 33a. supra.

71. See Note 33a. supra.

72. No. 27 of 1971.

73. See White, ibid, at pp. 30-35.

74. Cf. Proute, Change Without Chains featured in The Nation Sunday Nov. 30,1975 p. 41. And see Manley, ibid, at pp. 191-195.


76. E.g. the right to a decent wage to support a minimum standard of living; the right to health care. It must be noted that many of the rights recognised in the U.N. Declaration of Human

Rights are not included in the constitutions.



41

77. Cf. Manley, ibid., passim.

78. Mr. Cameron Tudor, a former Barbados High Commissioner to Britain, in an address to the

Annual Conference of the BWU on August 30, 1975, likened Russia to "Ruth standing in the

alien corn" with respect to American wheat. See Manjak No. 10. September/October 1975 for

a critique and summary of Mr. Tudor's speech which was described as "a remarkable exercise

in political propaganda."

79. Cf. Proute, ibid, at p. 41. But the economic press has never played an adversary role. This is

usually left to party organs supporting their parties in opposition. Manjak No. 10 at p. 5 has

attempted to describe the 'supportive role': "We do not support the view that a submissive

and pliant press is the most desirable press in the interest of national development. We believe

that the role of the press in the context of the region's development should be one of stimul

ating full community participation in establishing national goals and seeing that they are

effectively carried out. In addition, the media should support national policy wherever poss ible and where such policy is in evidence." Manjak's position seems to imply that the press may at some time find it impossible to support national policy although it gives no clue as to

what should render support impossible. One can only guess that the press would be entitled to

refuse support only on principle and in the public interest. Secondly Manjak's statement

refers to "where such policy is in evidence". This is important because it is impossible to sup

port a policy when either nothing or not enough is known about it as has been the case in the

Caribbean where governments are in the habit of doing public business in private. On Develop ment Support Communication etc. see Hosein, ibid., passim.

80. The fact of changing to socialism after pinning faith in capitalism as the answer to the region's

problems, can be viewed as an implied confession of error.

81. See Proute, ibid, at p. 41; see also Manley, ibid, at pp. 191-195.

82. See Manley, ibid, at pp. 194-195; see also Proute, ibid, at p. 41.

83. Manjak No. 10 says at p. 5 "... the fear of government action through existing libel laws has

reduced journalism to a state of what can be called "Compromise journalism". For a descrip tion of the fate of an editor and a newspaper which were struck by libel see The Nation Sun

day 14 December 1975 p. 36.

84. Especially the sub judice rule which puts any matter pending before the court out of public debate. Some people file a writ for defamation not with any intention of pursuing the matter

but to invoke the sub judice rule to silence their critics.

85. The United States of America.

86. See N.Y. Times v. Sullivan 376 US 254 (1964) at p. 270.


88. toe. fit.

89. N.Y. Times v. Sullivan, supra.

90. toe. cit.

91. Especially if the press gets "alert to corruption" in public life.

92. In which he outlines his "setting . . . and strategy" for changing the Jamaica society.


94. Mr. Manley deals with the press in 4 pages.


96. ibid, at 194-195.

97. ibid, at 194-195.

98. See White, ibid, at pp. 21-22. Carter-Ruck, Libel and Slander (1972), p. 105.

99. ibid, at pp. 22-23. Carter-Ruck, ibid, at p. 117.

100. As it induces an unwholesome self-censorship. See N.Y. Times v. Sullivan 376 US 254 (1964)

passim especially at p. 27.9.

101. ibid, at p. 279. Emphasis added. Cf. Tyrone Evelyn, Further Proof of our Political Force, arti

cle featured in The Nation Vol. 3 No. 2 Dec. 14. 1975 at p, 4: ". . . although there is visible



42

corruption in some areas, one cannot publicly talk about it because of the lack of that legal

ingredient called 'proof'

102. See Jamaica Defamation Act S. 12.

103. N.Y. Times v. Sullivan, supra pp. 280-281 quoting from Coleman v. MacLennan 78 Kan 711

at 723.

104. N.Y. Times v. Sullivan, supra pp. 280-281.

105. N.Y. Times v. Sullivan, supra p. 279.

106. Cf. the effect of the Official Secrets Act 1911.

107. But this argument seems to be faintly echoed in the insistence that the press in the Caribbean

should be less free than in metropolitan countries. However, Mr. Manley's position seems to

be that a high level of integrity is necessary. But see Politics of Change at p. 69 where Mr.

Manley rightly states: ".. . Then there is the matter of honesty. There has to be total commit

ment to frankness . . . Perhaps in societies that can take for granted the integrity of institu

tional and national leadership, this emphasis will seem strange;" and at p. 194 where he states

that the press should be "alert to corruption". In Jamaica and Guyana MPs must declare their

assets. See White, Parliamentary Integrity in Jamaica and Guyana (unpub. paper).


109. ibid, at pp. 192-194.

110. As suggested by Mr. Manley.

111. The economic press includes government-owned media especially Radio and TV networks

which are virtually closed to anything which is not laudatory of government. The practice is

so well known that it is superfluous to cite instances. There is no existing policy analogous to

the American "fairness doctrine".

112. Manjak No. 10 September/October 1975 p. 5.

113. In Trinidad however, the editor of the Express confidently asserts that:

"Government restrictions have never been a problem for the press in Trinidad and

Tobago. There are probably two reasons for that, one being the Prime Minister Dr. Eric Williams' constitutional belief in free institutions and a free press and the other the fact that Williams' faith in his apparent invulnerability makes him almost con

temptuous of 'irritants' like the press." The Nation Nov. 30 1975 p. 9.

114. Manjak No. 10 September/October 1975 p. 5.

115. Per Mr. Justice Brandeis in Whitney v. California 274 US 357, 375-376 and adopted in N.Y.

Times v. Sullivan supra.



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