Almost two decades ago an honorable member, while referencing a controversial House bill, emphatically stated: “Mr. Speaker, we are the government. We are here to govern. We are the protectors of the people by virtue of our collective and individual wisdom. We know we are on the right course and this bill in its totality attests to this vision and this commitment to protect. That, as I see it Mr. Speaker, is the end of the matter. Anything else is a clash between the sublime and the ridiculous in the theater of the absurd.”
So much for contending ideas. The House had convened the remembered November 25, 2003 session to debate two of the day’s most contentious issues, one being Section 166 of the St. Lucia Criminal Code, commonly referred to as “the abortion bill,” the other, well, better to hear about it from the honorable gentleman who by his own admission harbored little regard for opposition opinions.
“Mr. Speaker, we shall at this time focus some attention on Clause 361 that creates the offence of willfully spreading false news that causes, or is likely to cause, injury or mischief to a public interest. There are those who hold the asinine view that this provision constitutes a violation of their constitutional right to freedom of expression.”
Just perchance some of his colleagues did not quite get his meaning, the MP elaborated: “By a constitutional right, they mean a right enshrined in the constitution to say what they want where they want, regardless of the negative or positive consequences of their utterances, published or otherwise.
“How can one draw a meaningful line of demarcation between freedom and license?” he asked rhetorically. “On what level can one perceive an essential dichotomy that we do not see? We do not think, Mr. Speaker, that the answer lies in the realm of etymology.”
Close to an hour into his speech, the learned honorable gentleman further informed the House that his “philosophical exposition placed in sublime context the very essence and purpose of Clause 361,” which was “a legislative restriction mandated by the exigencies of societal living. It addresses the various and varied interests that constitute our socio-political existence.
“It is not the right of ministers that is being protected,” he assured his fellow MPs. “It is not the interest of politicians that is being preserved. It is the continued survival of our society and civilization that is being enshrined, that is being protected and defended from the unscrupulous and malicious. Those whose moral anchor lies in the stygian darkness of the deep, detached, disconnected.”
He introduced the mother of all nightmares: “Mr. Speaker, considering this scenario, what if one were to maliciously and spuriously publish in one of our tabloids that we had cases of cholera or yellow fever, tuberculosis, even SARS, in Saint Lucia? What would be the ripple effect in our society? What would be our situation in terms of travel? What would be the state of our economy?”
He reassured the House that the clause at the center of the debate would not trample on the rights of the press, in particular their right to freedom of expression, even though he had “seen instances of media terrorism in this country” that fortified his government’s “belief in the rectitude, sanity, and logic of this clause.” No one had a license to say or to publish with impunity whatever suited their purpose, he said, “particularly involving vital public interest, private concerns and reputation. Clause 361 shall be the law. So, let us govern ourselves accordingly.”
Even those who may have listened half asleep must’ve noted the MP’s jarring contradictions. On the one hand Clause 361 had nothing to do with protecting the rights of ministers or politicians. Its sole purpose was to protect “the vital public interest” from spurious and malicious tabloid publications that could have negative impact on “our tourist industry, our economy.” On the other hand the bill was designed to protect “private concerns” and the “reputation” of citizens.
There had been earlier contradictions. The mover of the bill had introduced it as the creator of a new offense. He read in the tone of a judge delivering a death sentence: “Everyone who willfully 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.”
He emphasized that the referenced mischief had to be against a public interest—not against a person. Replacing the document on the table in front of him, he turned his attention to the chair: “Now tell me, Mr. Speaker, what could be wrong with that?”
Plenty, as it turned out. Not long after his addition to Saint Lucia’s long list of largely un-policed criminal offenses the day’s prime minister set out during a TV interview to justify his action. “What you need to do is look up the history of 361,” he advised his interlocutor. “The government has a right to protect the reputation of individuals in the society, including public functionaries. And of course it has to protect the matter of a national interest.” He said he was “at a loss to understand why the press feels it is in the public interest to peddle untruths and calumny” but offered nothing supportive of his allegation.
Interviewer: But aren’t citizens, including those you refer to as public functionaries, already protected by our slander and libel laws?
PM: Not in the public interest!
Asked to define public interest, the prime minister recalled “a brilliant illustration” that one of his MPs had proffered during the earlier recalled House debate: “Say a newspaper were to publish what it knows to be a lie about a health matter. And don’t forget the court will require the prosecution to prove the paper knew it was lying. I’ve heard people argue that it will be impossible to secure a conviction under Section 361. Of course I’ve learned to laugh at some people’s interpretation of law. How could I not, after Rochamel?Parliament has passed a law and it is the job of the Director of Public Prosecutions to take action on behalf of the state. That is why it’s a criminal offense. Libel laws do not answer injuries to a public interest.”
As to how a public interest might be injured, the prime minister, in private life a lecturer in constitutional law, said: “The right to a fair trial, in whose interest is that? You seem to be searching for a definition for public interest. In whose interest is the fundamental right to free association?”
He seemed at a loss to explain the connection between constitutionally guaranteed rights long ago established and his latest addition to the Criminal Code of Saint Lucia. As if swimming in treacle, he added: “People have to understand that while they have the right to criticize politicians, equally it cannot be the case to injure the reputations of politicians with impunity. The very business of democracy and of politics and the protection of the public interest require that politicians also have a right to protect their reputations.”
Not one word about SARS, tuberculosis or injury to the tourism industry that was the beating heart of the island’s economy. What the prime minister said further contradicted the bill presenter’s assertion that Section 361 was “not about criticizing some public figure . . . not about reputations,” that it was all about “willfully publishing statements or news known to be false and likely to cause injury to a public interest.”
Not long after the prime minister’s revisted TV appearance, his government determined the new law that carried a two-year prison sentence was “unprosecutable”—and repealed it.
It should be said that many, including most media houses, had earlier considered Section 361 a good and necessary law. No surprise then that in this time of COVID-related fake news and its possible impact on imminent elections, Prime Minister Allen Chastanet is under pressure by close associates to revisit the discarded Section 361.
The campaigners for the law’s resurrection point to a multiple times repeated announcement by a notorious broadcaster that the day’s government had failed to report an outbreak of the coronavirus at a prominent hotel—strongly denied by the identified resort and the St. Lucia Hotels & Tourism Association. Many are urging the prime minister either to bring back an appropriately modified version of Section 361 or add teeth to his own recently enacted COVID-19 (Prevention & Control) bill.
Under Section 62—pulled shortly before the COVID-19 bill was passed—“a person shall not publish or cause to be published, posted or re-posted over a media platform inclusive of social media and purported news or report, or purported statement of fact, knowing or having reasonable cause to suspect that the news, report or statement is untrue or false and may incite public fear, panic or ethnic hatred.”
As for the government’s last minute decision to pull Section 62, the prime minister said in an interview shortly after the earlier cited troublesome announcement that the last thing he wants is to curtail the people’s right to free speech. He appealed to the media to police itself, to be more responsible when reporting COVID-19 news, in particular information not endorsed by the office of the Chief Medical Officer.
With many counting on the killer virus to deliver their election dream, it remains conjectural whether the government will be pressured into taking retaliatory action “in the best interests of the nation.”
Remarkably, the opposition leader Philip J. Pierre has publicly appealed for more cooperation between his own party and the government in the fight to curtail the spread of COVID-19. At the same time he openly condemned fake news, especially relating to the killer coronavirus!
This article first appeared in the November 2020 edition of the STAR Monthly review, available here: https://issuu.com/starbusinessweek/docs/star-monthly-review-01
