When celebrating World Press Freedom Day Minister Kwame McCoy rhapsodized about government’s commitment to freedom of expression. However, he overlooked the fact that parts of the legal framework which have bearing on the local media were originally created with the aim of shielding English monarchs and their appointees from criticism in historical times. The Guyana Constitution guarantees freedom of expression, but that notwithstanding still on the statute books are the archaic laws of seditious libel as well as criminal defamation.
Libel and slander are normally civil matters, but there are circumstances, for example if malice is involved, where a libel can be pursued in the criminal courts. While the Defamation Act deals with libel and slander at the civil level, criminal defamation is found in the criminal law, as is seditious libel. In addition to fines, both carry terms of imprisonment as punishment.
Seditious libel is an extension of sedition, a form of treason, which was established in common law in mediaeval times. In its libel manifestation it came to prominence in the 16th and early 17th centuries because of its use by the English Star Chamber to protect the king and his chosen officials, and was subsequently entrenched in the statutes at the end of the 18th century. From there it infected the legislation of many a Commonwealth territory, including Guyana, where it was left to sleep undisturbed until either abolished or resurrected by some less than democratically inclined government.
Criminal defamation too, which was inherited from England, was intended to protect the governing classes and those of standing in the society from penetrating criticism.
It would come as no surprise to anyone to learn that given his onslaught against the free press, Forbes Burnham had recourse to seditious libel, although only once. This was the case involving the editor of the Liberator, Ganraj Kumar, who following the 1973 election had received an anonymous document purporting to contain official instructions that ballot boxes from the rural areas were to be deposited at army headquarters before being taken for counting. He sent it to various officials for comment as well as to the newspapers with a covering letter. He was charged with seditious libel on the basis of the letter, but Justice Lindsay Collins ruled that no case had been made out against him and threw out the charge.
After that one would have thought that the seditious libel law would have lapsed back into slumber again, but not so. In 2018 the APNU+AFC government resuscitated it in a new guise – the Cybercrime Act. Public Security Minister Khemraj Ramjattan’s defence of the provision in Parliament was anything but cogent, but despite the opposition of the PPP/C it was nevertheless passed. None of our parties has ever been noted for a consistent adherence to principle, and so it was in December last year that under the present government a wanted bulletin for Mr Rickford Burke was issued for allegedly committing seditious libel online, among other things. The police described the offence as overt speech or conduct to bring hatred and contempt against the government.
Perhaps stung by the criticism which followed after it was pointed out that the PPP/C had opposed the inclusion of seditious libel in the Cybercrime Bill and then had applied it in the case of Mr Burke, Minister of Parliamentary Affairs and Governance Gail Teixeira reversed direction again. In the Budget debate of February this year she was reported as saying that the sedition laws included in the Cybercrime Act would be reviewed and removed at the appropriate time. Two questions arise here: First, exactly when is an appropriate time? And secondly, is the government limiting itself to the Cybercrime Act, or is it going to abolish the seditious libel provisions in the criminal law as well? If not, why not? If it is wrong online, then it is wrong in hard copy as well.
It is not as if the UK represented a model of timeliness where updating the law was concerned. Criminal defamation and seditious libel had fallen into disuse there in the 20th century, but it was only in 2009 that the British government moved to remove them from the statute books. Campaigners regarded this as clearing a path for them to embark on a crusade to abolish them in other places as well.
Concerned about the threat these laws represented to press freedom, the International Press Insti-tute in conjunction with the Association of Carib-bean Media Workers initiated a campaign in 2012 to get them repealed in the Caribbean. They succeeded in the case of Grenada, Jamaica and Antigua and Barbuda, and while they came to this country too and their arguments seemed to be entertained by government, nothing substantial emerged from their efforts. It is true AG Anil Nandlall was reported as saying that government was in the process of reviewing laws which were in need of revision including the criminal defamation legislation, but that was in 2013, and the PPP/C would have gone out of office before they got around to doing anything.
The next time the issue came up was when the coalition was in government. In October 2018 the Ministry of Legal Affairs revealed that among the amendments to the laws being looked at was that of criminal defamation. Somewhat over a year later Guyana reported to the UN Human Rights Council that it was working towards decriminalising defamation/libel by the end of the year, and that the Office of the Prime Minister had been working with the AG Chambers in this regard. This was January 2020, of course, and the prospect of elections paralysed everything.
So we are back where we were, still with legislation that contradicts any notion of freedom of expression lurking among our statutes. Perhaps Mr Nandlall and Ms Teixeira do not regard the matter as a priority, and are sitting waiting for the newly instituted Law Reform Commission which had its first meeting in September last year to make recommendations according to different preferences. One hopes not. Some work has been done already under the Support for the Justice System Programme including in relation to decriminalising defamation. Further postponement is hardly justified after all these years; after all, the PPP is not the ancien régime.
While the Commission is at it, perhaps at some point it could look too at a provision inserted by Burnham into the Publication and Newspapers Act. It was added to the law because the Liberator had no money when it was sued, so the civil law of libel was an insufficient weapon against it for the government’s purposes. The addition provides for a judgement in a civil action to be enforced against not just the body corporate, but also every person who was a director or officer at the time of publication. This can be done if in the view of the court the assets of the body corporate are insufficient to satisfy the judgement.
While the provision had been introduced with the Liberator in mind, it was also intended to intimidate directors and officials of all publishing companies so they would not print material critical of government, or in the case of printing companies, accept contracts for printing such material. Under Burnham it functioned as a fairly effective disincentive to printers in particular.
This is a notoriously litigious society, and some government officials too are hardly noted for a capacity to take criticism in their stride, whether that is personal in nature or directed at policies or decisions. We have entered an entirely new economic and by extension, social world, and we need to proceed with caution, and be able to consult at different levels and listen to contrary views. This is not the time for the single voice which Burnham sought; we need the range of opinions commensurate with a healthy democracy. Even without invoking criminal defamation and only once utilising seditious libel, Burnham managed to restrict freedom of expression, among other things by wielding the civil law of libel like a sledgehammer. This law is still frequently used; at this stage in our evolution we hardly need its criminal forms.
