Dear Editor,

On October 1, 2024, Opposition Leader Mark Golding sought to move a no-confidence motion against the prime minister but was not allowed to address the issue as the motion was ruled “out of order” and said to be in breach of the sub judice rule as the matter is under judicial consideration.

It was reported that Prime Minister Andrew Holness filed documents in court on the previous day seeking judicial review in relation to an investigative report by the Integrity Commission into his statutory declarations.

The question is: Does the sub judice rule really proscribe public discourse on such matters? It is my view that the law that is applicable in Jamaica does not necessarily do so.

It is important that the country is made acquainted with the existing law as interpreted by our Supreme Court.

The relevant authority is the judgment of the Full Court of the Supreme Court comprised of justices UN Parnell, Willkie, and White in The Director of Public Prosecutions v The Gleaner Co Limited and Another delivered in July of 1977 and reported in the Jamaica Law Reports (1977) 15 JLR.

The facts were that on July 18, 1976 an article was published in The Gleaner newspaper under the headline ‘Sweet and Sour’. And embodied in that article was a section titled ‘Witch Hunt?’ The item commented as follows on criminal proceedings pending against a former minister of government and his permanent secretary: “TO MY MIND , it is sad to see Messrs Allan Isaacs and Hardy-Henry being served with summonses on charges for months old breaches of the outdated Official Secrets Act which even Britain (that invented it during wartime) is moving to revise. It savours a little bit of revenge and persecution. Who is our Matthew Hopkins, Witchfinder-in-Chief?”

The director of public prosecutions sought to obtain writs of attachment against the newspaper and the editor for contempt of court on the basis that the item was calculated to prejudice the fair trial of the two men. The judges found unanimously that there was no contempt.

There are two important areas of the court’s reasoning that are relevant to the current issue.

Firstly, that where a newspaper commentary forms the basis of contempt proceedings, then two competing interests are in issue, namely, the right of freedom of expression and the right of a litigant to a cause not to be prejudiced before his case is finally determined. In this competition, it is the duty of the court to strike a fair balance.

Secondly, that where public debate on a matter of public interest has started and litigation supervenes, the launching of proceedings does not necessarily put the debate to a full stop. If what takes place thereafter is used as a ground to support a motion for contempt, the court will strike a balance with a leaning towards the right of freedom of expression.

The issues concerning the prime minister’s statutory declarations and the findings of the Integrity Commission are a matter of public interest and debate. The prime minister’s action in seeking judicial review is not sufficient to stop the discussions. What is more, judicial review is conducted by judges of the Supreme Court. Justice Parnell in his judgement scoffed at the idea that a Supreme Court judge could be prejudiced in such circumstances, saying ( at page 148) that: “ It must not be assumed that the minds of judges are likely to be prejudiced by newspaper and other comments. “

What is more, a judicial review involves mostly questions of law for the judges.

The invoking of the sub judice rule is not applicable here, and the motion that the Opposition sought to table should not be blocked because of it.

Lloyd McFarlane

Attorney at law

lloydmcfarlane1@outlook.com