Stephen Vasciannie SECTION 22 of the Jamaican Constitution guarantees freedom of expression, and without actually using the term, seeks to ensure "freedom of the press". The Charter of Rights (Amendment) Bill, which is designed to revise the formulation of some of our basic rights and freedoms, also provides for freedom of expression, and notes that this should be available through any public media.
The constitutional rules concerning freedom of expression do not give the media unfettered freedom to write any old thing without facing the consequences. Words are presumed to have power, and so, the Constitution recognises, for instance, that those who wield the pen should be subjected to the laws of libel.
Similarly, Section 22 of the Constitution allows the Government to pass laws and take measures that restrict freedom of expression if this is "reasonably required" in the interests of "defence, public safety, public order, public morality or public health". And, by virtue of the same constitutional provision, the Government may restrict the flow of information for the following purposes:
To protect from exposure the private lives of persons in legal proceedings
To prevent disclosure of information received in confidence
To maintain the authority and independence of the courts
To regulate telephony, telegraphy, the post, wireless broadcasting, television or other means of communication and
To regulate public exhibitions or public entertainments.
Special restrictions may also be placed on public officers, police officers or upon members of the defence force.
RESPECT
In practice, the Jamaican State has shown a reasonable degree of respect for the concept of freedom of expression. True, there was a period in the past when it appeared to some political leaders that they could manipulate the availability of newsprint as a means of influencing the press. And, there was that infamous "next time" speech in the 1970s. But, having regard to the present, and to the significant number of media houses now operating, freedom of expression seems to be safeguarded to a reasonable degree in practice.
But, to be sure, the degree of protection may fall short of what is desirable. For example, there needs to be further consideration about the extent to which the level of damages for libel awards may act as a prior restraint on press freedom. Also, the matter of the wire service defence in libel cases has not been fully ventilated: it cannot be fair for local media houses to assume full responsibility for errors made in other jurisdictions. The Government must also know that when it finds itself in a position to sell media houses, it loses public respect if the sale is made on a partisan basis.
To the credit of this Government, though, it has not sought to interfere with the media by legislative means. The media houses are generally left to their own devices. This is the constitutionally ordained approach, but it also happens to be the right approach for the society. It is the right approach for the society not only because freedom of expression encourages the broad ventilation of views and may thus promote solutions for social problems. It is also the correct approach because, as part of individual's dignity and place in society, that individual must have the right to express views without fear of oppression from the collective entity we call the State.
It also bears emphasis that inherent in the notion of freedom for media houses is the freedom for these media houses to be weak. This may appear paradoxical, for who would want to promote poor journalism and mediocrity? But, here is the point: if the society allows free media houses on condition that they act in a "positive", "progressive" or some other pre-ordained way, the society will be promoting the perspectives of those who oppose media freedom.
FREE TO BE WEAK
At different points in time, media standards will vary - that is to be expected. But, in this area, the logic of the market is consistent with basic notions of freedom. So, if at a specific point in time, the media houses are weak, competitors will eventually take advantage of the situation. The evidence is before us: the high standards of information-gathering exhibited by some reporters and on some news programmes, and the perceptive analysis offered in places, have raised levels of performance in most parts of the Jamaican media. The rising tide has lifted most (but probably not all) of the vessels.
Yet, this is not to suggest that the media houses may relax. In some respects, maintaining standards in the media is a daily struggle - the journalist is as good as his or her last story. And, it should not escape our attention that the sharp competition in some areas of the media has also prompted a reach for sensationalism, sometimes to the detriment of quality.
SOURCES
Last week, some good Jamaican journalism was on display in respect of the JLP's internal arguments. It was clear that some reporters had good sources from within, and they presented stories that allowed outsiders to appreciate the twists of political infighting. But one should note that the revelations from the inside had a certain bias. The Opposition Leader's perspective came directly from the Opposition Leader; the other side of the story came directly from the other side, and also from persons speaking from deep background.
The emphasis on the JLP's internal problems had the effect of weakening coverage of other issues. Thus, although the week had started with considerable interest in the Terrorism (Prevention) Bill, by the end of the week, it was apparent that many journalists had not yet taken the time to actually read the Bill - with some notable exceptions. The majority preferred to rely on generalisations offered by analysts in assessing a document with over 40 provisions and 70 pages. This helped to mislead the public, it must be said.
Stephen Vasciannie is Professor of International Law at UWI and consultant in the chambers of the Attorney-General.
