Saturday 7 December, 2019

Judiciary on Ole Mas: Criticism of Chief Justice, JLSC should be fair

There are boundaries that may be legitimately stretched, but that ought also not to be crossed.

This from the Judiciary which has taken issue with the portrayal of Ole Mas outside the Hall of Justice in Port of Spain on Saturday that was critical of Chief Justice Ivor Archie, the Judicial and Legal Service Commission (JLSC), and of the administration of justice.

In a statement issued by Acting Chief Justice Peter Jamadar, the public was reminded that even as the right to freedom of expression is a primary right and one without which an effective rule of law is not possible, it is not an absolute right.

Jamadar said while the Constitution and common law allows for the right to freedom of thought and expression, inclusive of the entitlement to voice criticism of the administration of justice and judicial officers, any such comment should be fair, reasonable and proportionate and “ought to show appropriate respect for the administration of justice and judicial officers in the discharge of their duties”.

He noted that in the context of Carnival, particularly through the art forms of calypso, ole mas and picong, the celebration has empowered permissive social commentary and critique and continues to facilitate important public participation in and discourse on T&T’s affairs.

However, quoting a 1999 Privy Council decision in Ahnee v DPP of Mauritius, he said there are boundaries that ought not to be crossed.  

The Acting Chief Justice urged the public to be fair in its criticism of the Judiciary and its judicial officers, urging “temperance” in the criticisms levelled against the JLSC, CJ and the Administration of Justice.

“Unwarranted, crass and demeaning criticisms are not likely to be justifiable in either the social or the public interest, and may more likely undermine them both.”

Below is the full statement issued by the Judiciary, under the authority of Acting Chief Justice Peter Jamadar:

On the afternoon of Friday the 1st March 2019, in broad daylight and in the presence of members of the public, an incident occurred on the front steps of the Hall of Justice, Knox St., POS (HoJ).

A small group of costumed individuals gathered there bearing placards critical of the Chief Justice (CJ), the Judicial and Legal Service Commission (JLSC), and of the Administration of Justice. On the 2nd March the Saturday Express newspaper reported on the event under the headline “Ole Mas comes to the Hall of Justice”, and introduced its report as follows: “Masqueraders bearing placards with unprintable statements directed at Chief Justice Ivor Archie drew the attention of spectators outside the Hall of Justice in Port of Spain yesterday”.

Investigations reveal that at the time there was an ongoing carnival parade in Port of Spain, put on by the NCC and themed as the ‘Traditional Carnival Characters Festival’, and that ostensibly this group was depicting Ole Mas.

Investigations have also revealed that photographs of the group on the steps of the HoJ together with comments have been circulating widely on social media both within and outside of Trinidad and Tobago, and that the incident has also been reported on in the local mainstream media.

There is no doubt that both under the Constitution and at Common Law, there exists the right to freedom of thought and expression, the right to hold and express political views, and the entitlement to be robustly critical of the administration of justice, including judicial officers. In this latter regard the Privy Council has pointed out as long ago as 1936 (Ambard v. The AG of TT): “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” And yet, even as the right to freedom of expression is a primary right and one without which an effective rule of law is not possible, it is not an absolute right (Lord Steyn, Ex p Simms 2002 AC 115, 125 HL).

Carnival in TT has always empowered permissive social commentary and critique. For significant historical, sociological, anthropological and cultural reasons, this is encouraged as a unique feature of the democratic way of life that has evolved in TT. Indeed, carnival continues to facilitate important public participation in and discourse on the Nation’s affairs, participation which is countenanced in the Preamble to the Constitution. Notable in this regard are the art forms of calypso, ole mas and picong. However as with so many things, there are boundaries. Boundaries that may be legitimately stretched, but that ought also not to be crossed.

 

Lord Steyn has pointed out in the 1999 Privy Council decision in Ahnee v DPP of Mauritius, “...there is a tension between freedom of expression and the offence of scandalising the court.” This boundary exists at the line between outspoken but respectful criticism, and between the primacy yet not absolute nature of the right to free speech. Free speech must therefore at times yield to other cogent social and public interests (Lord Steyn, Ex p Simms).

Thus whereas criticism of the Judiciary and of judicial officers is permissible, any such comment ought to be fair, reasonable and proportionate and ought to show appropriate respect for the administration of justice and judicial officers in the discharge of their duties. It is in these circumstances that the JRTT urges temperance in the public criticisms levelled against the JLSC, CJ and the Administration of Justice. Unwarranted, crass and demeaning criticisms are not likely to be justifiable in either the social or the public interest, and may more likely undermine them both.

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