The civil case brought by social commentator Claude Gerald against the management of Radio Montserrat concluded this past Friday. In early February 2014, the Mr. Gerald appeared on the Warren Cassell Show to discuss health issues. During the discussion the benefits of medicinal marijuana and coconut oil in fighting cancer arose. The programme ended abruptly when the station manager directed that Mr. Gerald be pulled off the air because it appeared as if Radio Montserrat was “supporting or promoting the use of marijuana which is illegal in Montserrat.”
After he was gagged, Mr. Gerald sought a declaration that his right to “freedom of expression pursuant to section 13 of the Montserrat Constitution Order 2010 was infringed” when he participated in a discussion programme on ZJB Radio was terminated by the station manager Herman Sargeant on account of him, (1) holding the view that the marijuana has tremendous medicinal properties which have led some countries to legalise the use of marijuana and (2) imparting information about the medicinal benefits of marijuana.
The main issue to be determined at the trial on Friday 17, April 2015 was whether there was constitutionally justifiable interruption of Mr. Gerald’s participation on the radio program on the ground that what was done was reasonable justifiable in a democratic society in the interest of public order or otherwise.
Antigua based Attorney Dr. David Dorsett represented Mr. Gerald and argued that given the constitutional importance afforded to the freedom of expression, it would be most surprising that interference with this right could be left in the hands of a public officer who could simply say “in my view, the facts necessary to justify the interference of the right to freedom of expression exist.” According to Dr. Dorsett, such facts are jurisdictional on the face of it, and is not a matter to be left to the judgment of a public officer. He concluded that argument and contended that the precedent fact that would justify interference with the freedom of expression has not been established.
Mrs. Sheree Jemmotte-Rodney and Miss Karen Reid of the Attorney General’s Chambers represented the station manager Sergeant. They maintained that the freedom of expression does not confer upon a citizen a generalized right to access public media, whether it be a radio or television station for example, for the purpose of exercising or purportedly exercising that right, or for expressing an opinion. Mrs. Jemmotte-Rodney cited the Privy Council case of John Benjamin et al v. The Honourable Minister of Information and Broadcasting and the Attorney General of Anguilla (2001) –an Anguillan case involving a Radio Phone-in programme on the Government owned Radio station, and concluded her argument that the media is not bound to facilitate a person’s right to freedom of expression and the right to freedom of expressions does not confer upon the Government a positive obligation to provide citizens with a platform to express their views.
Moreover, the crown contended that the station manager is conferred with the right of editorial control and has responsibility for ensuring that before anything is aired on the station the proper vetting procedures are followed. This she said was necessary so that there could be some level of assurance that what is broadcasted meets the required journalistic standards and does not or cannot be perceived as promoting any illegal activity. There was therefore a policy of the station manager approving the content.
Nonetheless, it was that same policy that Dr. Dorsett submitted, “reeks of censorship of the most hideous kind and must be viewed with utmost suspicion. Public officials can only do that which is authorized by positive law. In the words of Mr. Gerald’s counsel “A private citizen can do anything until the law says ‘no’ but a public authority can do nothing unless the law says ‘yes’.”
This is not the first time the outspoken activist and trained agriculturist has sought constitutional relief. Mr. Gerald in early 2003 after a 1999 incident, had successfully sued the Government of Montserrat when he was significantly demoted for not acknowledging the Minister at the opening of an Agricultural exhibition.
Justice Albert Redhead presided over the one-day trial reserved judgment and is expected to rule in the not too distant future.
