Suing to protect the cancer of corruption: : The politician and the media (Part III)

I regret to advise Dr. Aaron that in both law and politics the truth does matter. The politicians of the Labour administration should be concerned with the truth in their political calculation and governance. The Labour party should not be content in leaving the truth for the church, lest a heavy price is to be paid.

Dr. Aaron may not have taken the advice of his mama –for had he listened attentively, he would have appreciated the power of the truth expressed without malice as an absolute defense in law.

The truth is the best antidote against the sensitivity of corrupt politicians, who are eager to use the law of defamation as a protector of the cancer of corruption. Our grandmothers were not law school graduates nor did they obtain questionable PHDs but they believed that the truth would set one free. This principle has been deeply entrenched in our society based on our religious and moral upbringing. There is nothing that Dr Aaron and the Labour Party can do to take that away from us.

Without attempting to disabuse the narrow, politically partisan mind of Dr. Aaron and to discredit his false doctrine, the truth shall remain the best and most absolute defense against any defamation law suit. Any adverse public statement about a citizen presented as fact must be proven false to be defamatory.

Proving an adverse public character statement to be true and made in a good faith, without malice and with reasonable belief that the statements were trueis often the best defense against a prosecution for defamation. This is so because defamation is by definition a false or malicious accusation or misrepresentation of a person's words or actions. Ironically, the unadulterated truth is also the best cure for the cancer of corruption that continues to destroy the Dominican society.

Fair comment on a matter of public interest

Generally, a government is precluded from responding to criticisms by means of defamation actions. But individual political officials can and usually do.

Clearly, it would be undemocratic and against the essence of democracy to have the government (as an entity) sue the citizens for defamation. When a government is criticized, its recourse is political within the public domain and not the court.

To the extent that litigation itself is a weapon, a form of force, the government, especially a corrupt one should not be provided with that legal means to silence its critics by force, or even to threaten force, reprisal or intimidation.

The concept of “public interest” is not well-defined and is incoherent. It generally refers to what is the "common well-being" or the "general welfare". Public interest is core to policy debates, which again Dr. Aaron, Mr. Mervin Paul and Mr. Parry Bellot have foolishly argued we are not prepared to handle in Dominica. The public interest is core to the operation of law, politics, democracy and the nature of government itself.

The opportunity to make fair comments in the interest of the public or because one believes that the public has a right to know is something that local radio talk show personalities would identify with.

But they should note that as per the established law, the following factors ought to be taken into account in determining whether a statement is fair comment in the interest of the public.

(i) the seriousness of the allegation;

(ii) the extent to which the subject-matter is deemed to be one of genuine public concern;

(iii) the nature and source of the information, for instance, where the maker or publisher of the statement can be said to have axes to grind, or where one may have paid for a story;

(iv) the steps, it any, taken to verify or substantiate the published information;

(v) the status of the information;

(vi) the urgency of the matter;

(vii) whether a comment/explanation was sought from the plaintiff before publication and if the plaintiff has commented;

(viii) whether the published material contained the gist of the plaintiff's side of the story;

(ix) the tone of the statement/article; and

(x) the circumstances of the publication, including its timing.

All of the above helps to determine whether a statement was maliciously motivated and therefore defamatory. The weight to be given to the above and any other relevant factors obviously varies from case to case.

On this matter, I ponder on the law suits brought against a popular talk show host on Q95 radio, the former editor of the Times Newspaper and the pending law suit brought against the proprietor of TDN through a Senior Counsel on behalf of the Prime Minister.

To what extent, I wondered, the conduct of the afore-mentioned journalists can be said to be part of the increasing appetite of the Dominican public to identify the components of the cancer of corruption related to the sale of our national passports, the use or misuse of monies invested in a failed Economic Citizenship program and the Layou River hotel project and the allegations of quick accumulation of millions of dollars in assets and personal wealth while in public office that cannot be substantiated though legal means.

In the recent case involving investigative journalist Lennox Linton, the court did not accept the defense of fair comment in the interest of the public. It concluded that the journalist’s defense was dishonest and it deemed the statements made by the journalist to be attacks disguise as fair comments made in the interest of the public.

The court sought to determine the qualification of the defendant as a journalist, investigator, accountant etc, as if to signal that only if one is a professional in a certain field, could he lawfully express an opinion or make a fair comment in the interest of the public in that filed or appropriate, relevant professional evidence would have to be introduced to justify the alleged defamatory statements. By that reasoning, it would suggest that if one is a professionally trained and qualified Economist, he could more likely be qualified to express a fair comment on the management of Dominica’s Economic Citizenship program and the impact on the country’s economy from the sale of our national passports to international criminals.

According to a DNO report of Thursday, 24^th March 2011, Senior Counsel Anthony Astaphan commented that the judgment of the High Court that ordered Mr. Linton to pay a $50,000 fine for defamation against chartered accountant Keiron Pinard-Byrne should be used as an example for media practitioners on the island. According to the report,

“Mr. Astaphan advised that the judge made it clear that there seem to be a very ugly practice in Dominica about media practitioners throwing out all sorts of allegations and people believing that because it’s on the radio it’s the truth.”

Dominicans would also remember the news headline in October 2007 of the Times Newspaper indicating that the Prime Minister had launched a law suit against the editor of the Times Newspaper, Mr. Matt Peltier who had written n article in which he raised questions with regard to the alleged accumulation of wealth of the Prime Minister. He claimed that the Prime Minister had become a millionaire in a short period while being lawfully entitled to a public servant’s salary.

The Prime Minister was displeased with Matt’s reporting. He took great offense to being asked how he became a millionaire on a politician’s salary and his infamous senior counsel launched a lawsuit on his behalf. The terrible common mistake of Mr. Linton, Mr. Peltier and Dr. Fontaine, it would appear, is their attempt to investigate and report on the signs of the corruption cancer in Dominica, speaking truth to power, holding our elected public officials accountable and seeking to promote transparency in our system of public governance.

In each of the above cases, the journalists/civic-minded individuals have all expressed legitimate concerns about the sale of Dominica’s passport and the granting of citizenship to questionable individuals. Citizens of Dominica are very concerned about questionable land deals and the acceptance of gifts by the Prime Minister and from monies that appear to flow from unknown sources amidst the insults from the Prime Minister that “it is not [our] damn business where the Labour party gets it money from”.

As the former confidant of the Prime Minister, Joseph “Pappy Joe” Le Blanc would eventually reveal, “monies are being pumped” into the Prime Minister from various sources and “the Prime Minister makes two to three times his legal salary per month simply through travel entitlements. In general, our local journalists, who simply want to eliminate the cancer of corruption in Dominica and promote good and accountable governance, are being bullied by senior lawyers who wish to protect the interest of the politicians.

Matt’s secret settlement

The Dominican public still remains in a state of bewilderment and disappointment with regard to the settlement reached between Mr. Matt Peltier and Prime Minister Roosevelt Skerrit. We have a right to feel betrayed after contributing towards a fund to assist the journalist in his defense of the law suit brought by the Prime Minister.

Dominicans believe that just as Mr. Peltier has raised questions about the affairs of the Prime Minister under the cover of fair comment in the interest of the public and under the umbrella of transparency and accountability, it is likewise a fair and reasonable expectation that Mr. Peltier sees it fit and appropriate to come clean with the public with regard to the settlement reached with the Prime Minister.

It certainly appears to be in the best interest of the public and the Parties to inject some transparency with regard to this settlement deal, especially as Mr. Peltier himself has promised the public transparency and full disclosure on the matter.

The impact of Matt’s silence has far-reaching consequences and may well be one of the reasons why many Dominicans were tentative or reluctant to make a contribution to other similar causes such as the initiative of the group in defense of democracy. Mr. Matt Peltier must come clean and be transparent with the Dominica people who supported him as against the law suit filed on behalf of Prime Minister Roosevelt Skerrit.