[dropcap]Y[/dropcap]ear after year after year we have heard allusions being made with regard to Section 361 of the Criminal Code 2001 which, incidentally and erroneously, no longer forms part of our criminal jurisprudence. Greater minds than ours, in their constitutional exuberance, perceived an aberration that deleteriously struck at the heart of at least one of our constitutional freedoms. It is a perception which we have had difficulty embracing on a legal and common sensical level. This Section, which is titled “Spreading False News” (and that is instructive), reads thus:
“Everyone who wilfully publishes a statement, tale or news that he or she knows is false and that causes or is likely to cause injury or mischief to a public interest, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”
This Section was repealed by an amendment to the Criminal Code (No.38/2006). The sector that specifically took umbrage to this piece of legislation was the media. It held the opinion that one of our constitutionally enshrined fundamental rights and freedoms was being subverted and compromised; and that right and freedom embraced the protection of our freedom of expression.
The question that comes to the fore is this: In what way is that fundamental freedom being infringed or undermined? In what way does Section 361 pose a danger to the society and its various sectors, particularly the media? To answer the question the legalistic mode must be reduced to the pedestrian, plebeian, the mundane on a somewhat graphic template. If we were to read that section on the Ciceron minibus the commuters therein would in no way feel threatened. But the Rastaman from Monkey Town, with a certain criminal intent, would. To the rest, the Lucian concept of freedom would be abundantly manifest in its pristine, ubiquitous pulchritude. If a rogue journalist were to publish in the news that there is an epidemic of SARS or mad cow disease, the consequence would impact inimically on the public sector of Tourism and other sectors. Tourist visitor arrival would diminish drastically.
The raison d’etre of every piece of legislation, contextually speaking, is predicated on a societal prophylactic principle. What is the mischief that is intended to be averted? In this regard we shall allude to Chapter 1, Section 10 of the St. Lucia Constitution Order 1978.
It reads:
(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 intereference, freedom to communicate ideas and information without interference (whether the communication be to the 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 provision
(a) that is reasonably required in the interest of defence, public order, public morality or public health.
(b) that is reasonably required for the purpose of protecting
the reputations, rights and freedoms of other 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, and
(c) that imposes so far as that provision or as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
A rather succinct explication of the section is that a person shall not be hindered in the enjoyment of his freedom of expression. It is to be noted that most media houses are corporate entities and, as such, are legal persons. As we all know, a corollary of freedom is responsibility, and that responsibility is defined and expressed by what reasonably and imperatively obtains within a democratic society. And the constitutive elements of a democratic society, in some measure, are defence, public order, public safety, public morality and public health. The subversion of any of these would pose a serious threat to the survival and continuance of civilised society.
And so the question that now arises is: What is the nexus between this constitutional provision and Section 361? Or is there a link? As we for the greater part see it, this section deals with the regulation of the press, not from the point of view of private wrongs, or civil injuries resulting from any alleged infringement or privation of civil right which belongs to individuals, but from the viewpoint of public wrongs or crime, that is, involving a violation of the public rights and duties to the whole community, considered as a community, in its social aggregate capacity.
Section 361 was not ultra vires the executive and legislative branches of government and nor was it an infringement of Section 10 of the Constitution. On the contrary, it was in sublime functional conformity with it and in no way derogated from the duties and rights subsumed under the principle of freedom of expression. It is not constitutionally odious. And in this regard one needs to address one’s mind to ceratin words and phrases that establish the rectitude, legitimacy, functionality and validity of that Section. And they are: ”wrongfully”, “knows is false”, “causes injury”, ”mischief” and a “public interest”.
However perceived or interpreted, this Section is bereft of any meaning that would be deleterious to the norms that obtain in a democratic society. It is protective of society and its system members and sublimates the quality of life aspired therein. Its criminological rectitude is beyond repute since the elements of mens rea and actus reus are linguistically conspicuous. And most importantly it pronounces on a mischief that must be avoided and denounced in a civilised community of men.
Why was Section 361 axed? The answer eludes our “free thinking” mind as it further indulges in its jurisprudential and philosophical ruminations.
