Harper, Leslie v Edward Seaga
| Jurisdiction | Jamaica |
| Judge | CORAM: BROOKS, J. |
| Judgment Date | 11 December 2003 |
| Judgment citation (vLex) | [2003] 12 JJC 1101 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO C. L. H138/1996 |
| Date | 11 December 2003 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
DEFAMATION - Libel - Defence of qualified privilge - Whether words capable of being taken as referring to claimant - Whether words used were defamatory - Whether there was a duty to report information to the Jamaican public at that time - Award of aggravated damages
Defamation cases require courts to balance competing interests in an attempt to achieve justice. Those competing interests are, on the one hand the individual's right to have his, presumed good, reputation not tarnished by others, and on the other hand the constitutionally protected right of the individual to freedom of expression.
There are some cases in which the person asserting his right of freedom of expression does not allege that what he has said about another is actually true but that:
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(a) he believed it to be true,
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(b) he had a duty to communicate its contents to his listeners, and
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(c) his listeners had an equal interest or duty to receive the communication.
The assertion is conveniently called a defence of qualified privilege.
This is one of those cases.
Mr. Leslie Harper was, on the 6 th March 1996, a Deputy Commissioner of the Jamaica Constabulary Force. Mr. Edward Seaga was on that date the Leader of Opposition and leader of the Jamaica Labour Party.
Mr. Seaga, at a meeting organized by his party and in the presence of the media, used words which Mr. Harper says meant that he, Harper, was politically biased in the conduct of his official duties.
Mr. Harper, aggrieved by Mr. Seaga's words, has sued for damages for defamation of his character. Mr. Seaga, in his defence, has admitted that he used the words complained of but asserts that he was duty-bound to do so by virtue of his position, based on the nature of the information and based on its importance to the Jamaican public.
The task for the court is to determine which of these competing interests should prevail. In carrying out this task I shall make the following assessments:
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(a) what was Mr. Harper's position?
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(b) what is the meaning of the words used by Mr. Seaga and were they defamatory of Mr. Harper?
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(c) was the occasion one entitled to the protection of qualified privilege?
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(d) if it was not, to what relief if any, is Mr. Harper entitled? What was Mr. Harper's position?
What was Mr. Harper's position?
Mr. Harper, up to the time of Mr. Seaga's statement, had spent thirtyfour years in the Jamaica Constabulary Force. He rose through the ranks to achieve the distinction of being appointed a Deputy Commissioner of Police.
The contract of the then Commissioner of Police, Colonel Trevor McMillan, was to have expired within three months of the date of the statement and it seems to be common ground between the parties in this case, though not for an agreed reason, that Mr. Harper was one of the persons considered as eligible to succeed Col. McMillan.
What is the meaning of the words used by Mr. Seaga and were they defamatory of Mr. Harper?
In assessing this aspect it is necessary to set out in full the words complained of. They are as follows:
"Part of the strategy is to get rid of the present Commissioner of Police and to put in place someone whose credentials as a PNP activist are impeccable, reliable, solidly supported - a distinguished supporter of the P.N.P. The only difference being that he is in uniform.
Mr. Harper who is considered to be the person to replace Trevor McMillan is someone who we cannot and never will be able to support, because it is re-creating the conditions of 1993 when a similar type of Commissioner was in the post who did everything to turn a blind eye in that election."
One of my first tasks is to decide what meaning these words are capable of bearing and whether they are capable of being taken as referring to Mr. Harper.
Since I am not sitting with a Jury I am also to decide the particular meaning that the words used do in fact bear. ( Clerk & Lindsell on Torts - 14 th Edition paragraph 1699.)
Mr. Harper has pleaded that in their natural and ordinary meaning, the words meant and were understood to mean:-
"(i) that (he) was unable to carry out his duties as a senior officer with impartiality,
(ii) that (he) was motivated in the conduct of his said duties by political bias, and,
(iii) that (he) was unfit to hold the office of Commissioner of Police because he would be affected by political bias and partisanship."
The Defence filed by Mr. Seaga neither admitted nor denied these pleaded interpretations.
In the conduct of the case, especially in Mr. George Q.C.'s cross examination of Mr. Harper, it was Mr. Seaga's stance that the impartiality of the Police Force especially the impartiality of its leadership was essential to good governance. It was also suggested by Mr. George in that context that it was the duty of the leadership of the force to have politically biased members expelled. Against that background Mr. George suggested in cross-examination to Mr. Harper that he had a known political bias. In his closing submissions Mr. George submitted that "the object of Mr. Seaga's speech was not to condemn Mr. Harper as Deputy Commissioner but to alert the country to the fact that he was unfit to be Commissioner in the future." Mr. George went on to say, "Mr. Seaga wasn't complaining of his conduct as Deputy Commissioner in that sense."
Police officers, of whatever rank, are required not only to be impartial in the conduct of their duties but must be seen to be impartial by the public that they serve. An assertion therefore that a police officer, particularly a very senior officer, is politically biased, strikes at the very root of this vital requirement for the conduct of that officer's public office.
Based on what I have said about the position of a police officer I cannot accept that Mr. Seaga's statement can hold such a restricted meaning as Mr. George submits that it does. Having considered the words used and the manner in which the case was conducted I find that the words:
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(a) are capable of the meaning alleged by Mr. Harper
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(b) were clearly used in reference to Mr. Harper, and
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(c) do it fact bear the natural and ordinary meanings as alleged by Mr. Harper.
I therefore find that the words complained of were defamatory of Mr. Harper in his office of Deputy Commissioner of Police.
What was the nature of the occasion at which the statement was made?
It is not disputed that the statement was made at a meeting organized by the Jamaica Labour Party. Mr. Seaga's evidence is that the meeting was one of a series of meetings so organized. It was held at the Wyndham Hotel, Knutsford Boulevard in Saint Andrew, was open to the public and the media would have been alerted that it was being held. In answer to interrogatories Mr. Seaga admitted that the media was in fact present. He testified that the media usually, but not necessarily always, attended such meetings.
Mr. Seaga testified in cross-examination that the meeting had been called to highlight "the state of the country, (and that there were) several presentations, one of which was about Mr. Harper."
It is also Mr. Harper's uncontradicted evidence that the words used by Mr. Seaga were broadcasted on R.J.R. (a radio station), C.V.M Television (station) and were published in the Jamaica Herald and Daily Observer newspapers. No evidence was given concerning the circulation of each of these media but I do not think I would do injustice to take judicial notice that they all have national coverage.
This therefore is the setting in which Mr. Seaga uttered the words complained of. I shall explain later in this judgment why I view the setting as being important.
Was the occasion one entitled to the protection of qualified privilege?
This question has to be analysed in the context of an often quoted statement by Lord Atkinson in the case of Adam v. Ward (1916 – 17) ALL E.R. Rep 157 at p. 170 where he said:
"It was not disputed in this case on either side that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."
It is therefore necessary to determine whether Mr. Seaga had a duty, legal, social or moral to make the statement complained of.
Position of the Leader of the Opposition
The post of Leader of the Opposition is one enshrined in the Constitution of Jamaica. The holder of that post is, by Section 1 (6) of the Jamaica (Constitution) Order in Council 1962 not in the public service as that term is defined in Section 1 (1), in that he is not in "the service of the Crown in respect of the Government of Jamaica."
The Opposition Leader is, appointed by the Governor General as "the member of the House of Representatives, who, in his judgment, is best able to command the support of a majority of those members, who do not support the government" (S.80 (1) of the Constitution).
The responsibilities given to the Leader of the Opposition by the Constitution are consultative in nature. He is to be consulted by the Prime Minister and thereafter the Governor General in the appointment to, and removal from office, of members of several of the other constitutionally enshrined posts, including the members of the Police Services Commission (Section 129 of the Constitution). I have made specific mention of this Commission because it is charged by the Constitution with the responsibility of advising the Governor...
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