Editorial | Follow Justice Seepersad's proposal to insulate press
Last week’s court ruling that a police search of the Trinidad Express newspaper 10 months ago was unconstitutional was a victory not only for that newspaper, but for press freedom across the Caribbean. For while the case was about Trinidad and Tobago, Justice Frank Seepersad offered perspectives on the centrality of the press in a low-trust society, which ought to be embraced by regional governments. His analysis is certainly applicable to Jamaica.
In addition to the conceptual framework within which Justice Seepersad fit his ruling, this newspaper commends to Jamaica’s Government his suggestions for the legislative insulation of the right of journalists to protect their sources and that persons who approve search warrants should have significant legal training. We would also add to the mix warrants for arrests beyond 24 hours.
The case arose out of a report by the Trinidad Express last March that several bank lodgements, made between 2014 and 2017 by Deputy Commissioner of Police Irwin Hackshaw – who, at the time of the story, was acting in the top post – had been flagged as suspicious transactions under Trinidad and Tobago’s Proceeds of Crime Act (POCA). The police wanted to know who leaked the information, arguing that its disclosure had the potential to compromise the case. They believed, as was argued in affidavits, that the leak came either from the Financial Intelligence Unit (FIU), an independent agency that oversees Trinidad and Tobago’s anti-money laundering and terrorism financing regime, or the Financial Intelligence Bureau (FIB), an investigative arm of the police.
The initial warrant, signed by a justice of the peace, was for the search of “premises under the control of and managed by” the Express’ editor-in-chief, Omatie Lyder, and included the confiscation of digitally stored information. When the police attempted to execute the warrant at the Express’ offices, the newspaper’s lawyers insisted that the document was flawed as it suggested that it was Ms Lyder’s personal premises that was to be searched. The police returned with a new warrant. But the new document, too, it turned out, also had an error. It referred to offences under a section of the POCA law, where no such offences existed.
In his judgment, Justice Seepersad held that both warrants were “clearly irregular”, pointing to flaws in them with respect to the nature of the alleged offence; uncertainty about the statutory provisions on which the investigation was predicated, and failing to disclose when the warrants were being requested, on whether the information being sought from the newspaper could have been obtained from the FIU or the FIB. In addition, the judge said that the language of the warrants “was not circumscribed or precise, nor was it confined to specific relevant areas so as to ensure that its execution would cause minimum disruption and incursion”.
PUBLIC INTEREST MANDATE
While making it clear that the press has no carte blanche protection or privilege, Justice Seepersad nonetheless stressed that “press freedom has to be jealously guarded by the court”. Indeed, the media has a “public-interest mandate to vigilantly monitor private business, government action, as well as socio-economic and cultural realities so as to ensure that relevant and critical information is disseminated to the public at large”.
“... The role of accurate and responsible investigative journalism is therefore vital as unearthed information obtained by such journalists can empower the citizenry and guard against inequity, discrimination, corruption, public malfeasance, and maladministration by holding the influential, wealthy, and the powerful accountable,” the judge wrote.
Against this background, Justice Seepersad held that the protection of journalistic sources “must be treated as an inherent and integral part” of the Trinidad and Tobago constitution’s explicit recognition of freedom of the press. This, therefore, required “a careful and proportionate balance … between the interests of justice and the public interest on one hand and the interest of free and fearless journalism, which includes source protection, on the other”.
Jamaica’s Constitution does not explicitly declare press freedom as one of the fundamental rights and freedoms enjoyed by citizens. However, freedom of expression and the right to hold and exchange ideas, the foundation upon which a free press rests, is the same in the Jamaican and Trinidad and Tobago constitutions. The gravamen of Justice Seepersad's arguments, in the circumstances, applies as much to Jamaica as to Trinidad and Tobago.
In this regard, the Jamaican Government should adopt Justice Seepersad recommendation to the Trinidadian authorities that they pass legislation mirroring Canada’s Journalists Sources Act to cover any requests that journalists disclose information and the circumstances under which they may be searched. In Canada, search warrants of this kind have to be issued by a judge of a superior court who is satisfied that the information that is to be subject of a search cannot be reasonably obtained from other sources, and that the public interest in the investigation outweighs journalists’ right to privacy and of the dissemination of the information. Judges may also apply conditions to protect the confidentiality of sources.
As Justice Seepersad noted, and as the flaws in the Express warrants laid bare, JPs are not highly trained in the law but are often asked to make significant decisions that have an impact on people’s rights and freedoms. There are several bits of Jamaican legislation under which the disclosure of information is a criminal offence for which JPs could be asked to sign warrants. Some, conceivably, could include the search of journalists’ workplaces or other premises, where information about sources could be confiscated as part of a supposed investigation. That is worrying.
Further, the Jamaica Constabulary Force, in its submissions for amending the Zones of Special Operations law, has recommended that JPs be given the authority to extend the detention of persons held under the law by up to 72 hours. In the face of Justice Rampersad’s observations, that demands a cold, hard look.