Saturday, February 24, 2018

Under cover of apathy

Martin Daly logo44

Mark Fraser

 A colleague referred me to a recent commentary in the New York Times on the occasion of the fiftieth anniversary of the landmark free speech decision of the United States Supreme Court in New York Times v Sullivan.

The Sullivan case shut down defamation lawsuits by public figures even if falsehoods were published about them, unless the publisher knew that they were false or acted with reckless disregard for truth. Based on the US Constitution, the Court altered the common law of libel and offered much broader protection to the media than the common law, which the Privy Council has confirmed is still operative in Trinidad and Tobago.

In a sweeping dictum Justice Hugo Black said: “I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticising their government, its actions, or its officials.”

In the commentary, I found amusing references to the bitterness of the famous Thomas Jefferson towards the press when his second term as the third President of the United States was going wrong.  This bitterness was a complete turnaround from the critical role he had previously ascribed to the press.

Jefferson, a founding father of the United States and its Declaration of Independence, reportedly wrote in 1787: “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Two decades later Jefferson regarded the press as a vehicle that bent the truth. He reportedly wrote: “Truth itself becomes suspicious by being put into that polluted vehicle.”

This vehemence reflects the bruised psyche that is the inevitable result of participation in public life and the scrutiny of statements, decisions, acts and omissions of individuals or groups.  However, in the brilliant lyrics of Gloria Gaynor one has “to grow strong and learn to get along”, even if this mantra of survival is often easier uttered than done.

Some of the bruising which public officials receive is often self-inflicted.  This is the case in the matter of the yo-yoing of retired Justice Ventour into and out of the Integrity Commission, for which there has been no official explanation from the Office of the President.

No one would wish to force a re-trial of matters in respect of which a judge did not deliver a decision before retirement at the mandatory age or before resignation in unforeseen but sympathetic circumstances.

In the case of judges who have left to pursue other career options before finishing their work we are bound to feel sympathetic to the litigant, but that is not a sympathetic circumstance.  It does not reflect well on the Judiciary. Accepting an appointment to the Bench is not just a handy career option.

The media have questioned the appointment, removal and re-appointment of Mr Ventour. Specific questions have been asked about the state of the President’s knowledge when he first appointed Mr Ventour.

There are those who say that the issue is no big thing.  I do not think we can be apathetic about itgiven the high constitutional safeguards with which the Judiciary as an institution is blessed.  In any event the issue has gone further as it is now reported that the accreditation of a journalist who is pressing the questions upon the Office of the President has been put in jeopardy.

Sturdy lawyers do not find it easy to sit idly and permit due process of law to be imperiled.  Any personal opinion held about the actual or likely victim of pressure does not influence us in making or refraining from comment or from acceptance of a professional or, when necessary, a pro bono engagement.

I am also un-attracted by accreditation on the cocktail circuit or the VIP circus tents to which so many are addicted.  Accordingly I may be bold enough to ask the rhetorical question whether pressure on a journalist for persistent questions constitutes “doing the right thing because it is the right thing to do”?

On another matter of accountability, I join those who have already thanked the current Government for establishing a Commission of Enquiry into the 1990 attempted coup and promptly releasing its report.

This exercise permitted all of us who volunteered at a critical time to serve our country an opportunity to contribute to settling the historical record of the most significant event since Independence, to account and to contradict rumour and innuendo, some of which were cruel and self-seeking.

It always astonished me that successive political leaderships did not seem to care a damn about an attempted coup and the destruction of large parts of our capital, Port of Spain.

While we continue, with similar indifference, to brush aside every adverse act or omission as “a misstep”, I share an aphorism, which I came across recently: “Apathy is the glove into which evil slips its hand.”