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Trinidad and Tobago High Court |
] [Hide Context]
EDEN SHAND
Plaintiff
And
NETWORK LIMITED
IRA MATHUR
CHANKA SEETERAM
Defendants
APPEARANCES :
Mr. Russell Martineau S.C. and Mr. Faarees Hosein for Defendants
The present libel action was instituted by the Plaintiff against the Defendants in respect of a television programme entitled “ Seasons - The Bal Ramdial Story ,” (the said programme) which was broadcast on national television on one of the local television stations “ TV6 ” on Saturday 3 rd July, 1993 at 8.00 p.m. and which purported to deal with, among other matters, the Plaintiff's conduct while in public office.
The Television Broadcast
On Saturday 3 rd July, 1993 the said programme was broadcast on TV6. The said programme contained interviews by members of Bal Ramdial's family together with interviews by very prominent members of the society. Interspersed among these interviews were the comments of the Second Defendant as narrator.
The said programme “ Seasons - The Bal Ramdial Story” was divided into five segments: (1) The Introduction (2) Sprouting of Life (3) Growth (4) In Bloom (5) Weathering the storm.
The introduction essentially gave the impression that Bal Ramdial was the father of Conservation and Forestry in Trinidad and Tobago and the top man in his field. However it also included a statement by Frank Rampersad, a prominent economist and former civil servant and Permanent Secretary, suggesting that it wasn't all smooth sailing, that certain charges of corruption, nepotism and guns were levelled against Bal Ramdial by certain people including politicians :
“And he [Bal Ramdial] told me that there were certain charges levelled against him by certain people including certain politicians . They had to do with corruption in the management of the forestry, they had to do with guns, they had to do with nepotism in the hiring of people to work in the forest.” [ Emphasis added .]
The second segment, “Sprouting of Life,” dealt with his childhood days in impoverished circumstances and his family's sacrifice in ensuring that he had the benefit of a tertiary education.
The third segment, “Growth,” focused on his marriage to Ruby Ramdial, his university days and his return to Trinidad in 1964 to begin working as an Assistant Conservator of Forest. It also emphasized the importance of education, religion and the environment in his life. His wife described his lifelong concern for the environment in this way: "He breathed the environment. I mean that was him. The environment was him."
The fourth segment, “In Bloom” concentrated on the period that he served as Conservator of Forests and Chief Game Warden between 1970 and 1988. It set out his monumental achievements in forestry and the environment and the respect he had earned both nationally and internationally.
It is in the fifth segment, “Weathering the Storm,” that the storm clouds gather. The transcript of that fifth segment provides as follows:
“ Weathering the Storm
Ira Mathur:
In 1984 Dr. Ramdial left for Geneva for a three-year position as director of a highly coveted forestry program at the UN [United Nations]. In 1987 came the shock, back at home charges of corruption, holding guns, nepotism.
Ruby Ramdial:
He was interrogated the very first week the Government came into power by certain people and people whom he worked with did not even say a word in his favour.
Chanka Seeteeram:
I think it was more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial and the way I heard it was that Bal Ramdial was Mr. Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior so that when he was given political power he thought it best that he would use his power to deal with Dr. Ramdial.
Frank Rampersad:
Nothing was proven he was clean they gave up in frustration because they couldn't find anything to pin on him. But he was subjected to intense harassment and I am satisfied that adversely and severely affected his health. Because immediately after he suffered his first heart attack and I am satisfied that this rather unfortunate period of his life greatly shortened his life and prevented the fulfilment of his life's work.
Overand Padmore:
It was a different administration and I don't want to jump into the easy explanation of saying politics. I don't know. The Parliamentary Secretary himself was a man of considerable experience in forestry. Whether that had anything to do with it I simply do not know and do not wish to speculate on that.
Frank Barsotti:
Trinidad and Tobago it has recently been said is a land of rumour and lots of rumours and ole talk went around.
Dr. Vijay Naraynsingh:
If we sweep aside our most talented, our most devoted, our most loyal people with just an administrator's stroke of the pen, what it does is that it impoverishes our country.
Ira Mathur:
(Voice over close-up picture or image of the Plaintiff followed by image or picture of Professor Julien Kenny).
None of his critics including Eden Shand and Professor Kenny wanted to comment on camera. Dr. Bal Ramdial was breaking but not broken. Once removed as Conservator of Forests in 1989 he continued environmental work as Dean at NIHERST. Towards the end of his life his health failed and he was in constant pain.
Frank Rampersad:
I know the great heroism he was sharing in the last year of his life and he had severe physical and other disabilities and it is a great thing to see a human being put these aside.
Ira Mathur:
On March 30 th 1993 he died in the presence of his beloved daughter.
Avani Ramdial:
He died basically in my arms and I couldn't accept it.
Mother:
That is God child, God bless him, God bless you where you is. (crying).
Ruby Ramdial:
He gave his best for his country…… Ahm …..I hope that the children of the nation will ….. Ahm……. benefit.”
On 3 rd January, 1994 the Plaintiff commenced proceedings against the Defendants for among other things, damages for libel. The Statement of Claim complained of everything that is contained in the fifth segment, “Weathering the Storm” .
The Plaintiff at para. 5 pleaded that the natural and ordinary meaning of the said words and pictures were that, on his assuming public office as Parliamentary Secretary and as a Minister, the Plaintiff embarked upon a concerted and persistent course of action, wrongly, falsely and maliciously, to canvass charges of corruption, the holding of guns illegally and of nepotism against Bal Ramdial and/or to solicit and/or to influence persons in authority, and having the capability of adversely affecting Bal Ramdial in his personal livelihood and by way of his professional standing and credibility, to the belief that the said Bal Ramdial, a respected member of the national community and, among other things, a former Conservator of Forests in Trinidad and Tobago, was implicated in and by the said charges.
Further and/or alternatively the Plaintiff pleaded at para. 6 that by the said words, pictures and images, the Defendants meant and were understood to mean that the Plaintiff held and cultivated a grudge against Bal Ramdial acquired at or around the time of the said Bal Ramdial being the Plaintiff's boss; was motivated in the holding of that grudge by professional jealousy; that the plaintiff on assuming his said public offices from December 1986 abused his said positions and/or public office and/or influence as Parliamentary Secretary and Minister of Government and embarked upon a concerted and persistent course of action wrongly and/or falsely and/or maliciously to canvass charges of corruption, the holding of guns illegally and of nepotism against Bal Ramdial and/or to solicit and/or influence persons in authority and having the capability of adversely affecting Bal Ramdial in his personal livelihood and by way of his professional standing and credibility to the belief that the said Bal Ramdial, a respected member of the national community and, among other things, a former Conservator of Forests in Trinidad and Tobago, was implicated in and by the said charges. Further, that the Plaintiff in relation to the said Bal Ramdial conducted himself improperly in public office and/or acted capriciously in that he abused such opportunities as were available to him in and by way of those offices wrongly and/or without justification and/or vindictively to damage the professional credibility of and/or to injure the said Bal Ramdial in his livelihood.
The Defendants' Defence raises the following major issues: (i) the meaning of the words complained of; (ii) fair comment; (iii) qualified privilege. The Defendants also contend that the Plaintiff's claim should be dismissed on the ground that the Plaintiff has sued only in libel, and that the television broadcast, if defamatory, could only amount to a slander.
The Principal Issues
Having regard to my findings in this matter, I am of the view that the principal issues that now arise for determination are:
1. Whether the broadcast of the said programme and the publication of the words spoken by the interviewees, if defamatory, constitute a libel or slander at common law.
2. Whether the broadcast of the said programme and the publication of the said words were fair comment made without malice upon matters of public interest, namely the contribution made by Bal Ramdial to forestry and forest conservation in Trinidad and Tobago during his tenure of office as Conservator of Forests, the treatment meted out to him and the circumstances surrounding his removal from that office, and the conduct of the Plaintiff in a public office.
The Early Years 1963-1977
The Plaintiff is at present a Forestry and Environmental Consultant. In 1963 the Plaintiff joined the Forestry Division of the Ministry, which subsequently came to be known as the Ministry of Food Production, Marine Exploitation and Forestry and the Environment (“the Ministry of Forestry and the Environment”), as an Assistant Conservator of Forests. Prior to his appointment as Assistant Conservator of Forests the Plaintiff had obtained a Bachelor of Sciences degree in Forestry at the University of Aberdeen.
The Plaintiff served as an Assistant Conservator of Forests from 1963 until his resignation in 1966. The Plaintiff served as an Assistant Conservator of Forests for approximately one year before Bal Ramdial joined that Ministry in 1964, also as an Assistant Conservator of Forests. However the Plaintiff was not present in the said Ministry between 1965 and 1966 as he had gone abroad to pursue a Forest Officer's post-graduate course at the Commonwealth Forestry Institute, which is one of the technical institutes attached to the University of Oxford.
In 1966 the Plaintiff resigned from the Forestry Division in order to pursue a Master's Degree at the University of British Columbia, Canada, which he duly completed in 1968. Thereafter the Plaintiff worked in Canada until 1973 for a series of firms as a Forestry Products Marketing Consultant.
In 1973 the Plaintiff returned to Trinidad to fulfil his scholarship obligations to the State. This required him to work with the State for a period of three years. For this purpose the Plaintiff was given an appointment as Assistant Conservator of Forests. On the Plaintiff's return to the Forestry Division in 1973, Bal Ramdial was still attached to the Division but had gone abroad on study leave. Bal Ramdial returned in 1975.
The Plaintiff testified that in the 1970's he also worked in a number of countries as a Forest Products Marketing Consultant to the United Nations. The Plaintiff also had two separate stints as a television presenter, the first being in 1974, and the other being some time in the late 1970's, in 1979 or even in 1980. Each stint lasted thirteen weeks.
As is evident from the above, the Plaintiff is a distinguished forester who has a considerable amount of experience in the field of forestry.
Bal Ramdial
This might be an opportune time to deal with Bal Ramdial's background. Bal Ramdial was born in 1936. Bal Ramdial attended the University of New Brunswick in 1958 where he pursued and obtained a degree in Forestry. Bal Ramdial is also the holder of a Master's degree in Forest Genetics and Statistics from Yale University.
In 1964 Bal Ramdial returned to Trinidad and joined the Forestry Division as an Assistant Conservator of Forests. Prior to his eventual appointment as Conservator of Forests in 1970, Bal Ramdial served as an Assistant Conservator of Forests and as Deputy Conservator of Forests. Bal Ramdial was appointed to the post of Conservator of Forests in 1970 and held that post until 1988.
I do not think that there is any dispute that Bal Ramdial was a brilliant forester, recognized both nationally and internationally for his outstanding work in forestry and protection of the environment.
If I may pause at this stage and attempt to summarize some of the more salient aspects. The Plaintiff testified that he first got to know Bal Ramdial when the latter joined the Forestry Division in 1964 as an Assistant Conservator of Forests. At that time he, the Plaintiff, was already employed there, as an Assistant Conservator of Forests since 1963. In 1966, the Plaintiff resigned in order to pursue a Master's Degree. In 1970 Bal Ramdial was appointed Conservator of Forests. In 1973 the Plaintiff returned to Trinidad to fulfil his scholarship obligations to the State and was given a temporary appointment as an Assistant Conservator of Forests. In 1973 Bal Ramdial had himself gone abroad on study leave and returned in 1975. The Plaintiff himself summarized the time he and Bal Ramdial worked together in that Ministry as being from about September 1964 to September 1965, and again from 1975 until 1977.
The Relationship between the Plaintiff and Bal Ramdial in the Early Years
On the Plaintiff's application when he occupied the post of Temporary Assistant Conservator of Forests for a salary increase, Bal Ramdial, by memorandum dated 24 th September, 1975 addressed to the Permanent Secretary in the Ministry, remarked of the Plaintiff (“ C8 ”):
“I wish to recommend that Mr. Shand be appointed on a temporary basis until such time when Brickfield Industries becomes a fully private company with an established Board of Directors.
Mr. Shand's past and present performances have been one of seeking greener pastures rather than one of commitment and willingness to make a positive contribution. There is no guarantee that there will not be repeat performances of the type currently being experienced.
I have further discussed his performances with the Deputy Conservator, Mr. Dardaine and the O.P.A.S. Officer, Mr. P. Durgnat, for the period November 1973 and the present, and these may be better summed up as one full of promises rather than performances.”
The Plaintiff initially in cross-examination claimed that the first time he knew about Bal Ramdial's remarks on his request for a salary increase was when his Instructing Attorneys gave him a bundle of documents a few days before this case began. However immediately after that the Plaintiff conceded that he had seen the Defence a few years ago and he might have known then of the said remarks.
It is clear that the Plaintiff was not speaking the truth initially. I also note that the Defence which was filed some seven (7) years before on 21 st December, 1994, quoted a substantial part of the said memorandum of 24 th September, 1975. A Reply was filed in March 1995. Clearly the Plaintiff would have had to give instructions to his Attorneys for the preparation of the Reply. Again the contents of this 24 th September memorandum would have been of some significance to the Plaintiff, so that it is unlikely that he would have seen same and not recalled that fact. In my view that would have a negative impact on the Plaintiff's credibility.
The Plaintiff as a Temporary Assistant Conservator of Forests was posted to the Utilization Section with responsibility for teak production in June 1976. By memorandum dated 7 th August 1976 to the Plaintiff (“ C9 ”) Bal Ramdial complained of “the precipitous downward plunge” in teak production since the Plaintiff's posting to the Utilization Section and censured the Plaintiff for his job performance. This memorandum included the following:
“I have discussed the situation with you on at least three occasions and each time you advanced reasons which may be summarized thus:
1. Contract mills for 1976 are delinquent.
2. Sawmill motor at B.F.I [Brickfield] became defective.
3. Starter became non-functional after (2) had been repaired.
In our discussions you assured me that these setbacks were being pursued vigorously to arrive at early solutions. Recently, however, at a meeting with Mr. S. Sampath at my office I brought to his attention the poor performances of his society and he immediately expressed complete ignorance of and surprise at my accusation. Nevertheless he promised to rectify matters early. At this stage we have nothing on the record to prove Mr. S. Sampath to the contrary nor to apprise Tenders Board of the present situation.
Three months have gone by and neither your personal approach nor discussions seem to be producing any results. This situation is cause for concern. It has led me to feel that you are not approaching your tasks with the fervour expressed. I am certain that you can do much better and look forward to seeing, early, some positive results.”
By his response in his memorandum dated 10 th September, 1976 (“ B1 ”) the Plaintiff disclaimed personal responsibility for the drop in teak production and refuted claims that he lacked fervour. The Plaintiff regarded the low production from contract mills as being largely due to the unsuitability of, and lack of co-operation from, the Sawmiller's Co-operative Society Limited. The Plaintiff concluded this memorandum by saying:
“The contents of this memorandum I have apprised you of before in our several discussions. It is distressing that I have to devote time to composing this reply which really does not improve the statue quo of teak production. The smooth working relationship between fellow professionals really does not have to be cluttered with an exchange of a type of memorandum that is better left to petty-minded paper-pushing public service plodders.”
By memorandum dated 20 th September, 1976 Bal Ramdial responded to the Plaintiff's memorandum dated 10 th September, 1976. Bal Ramdial was, among other things, dissatisfied with the reasons advanced by the Plaintiff for low teak production at Brickfield and concluded by stating (“ C10 ”):
“The injection of sarcasm in your penultimate sentence is repugnant and unwarranted. Your supercilious attitude clearly indicates that you are averse to accept criticism regardless of its justifications. Finally if you wish to be the pall bearer for debunking the present administrative system of operation I urge to communicate your views more appropriately to the Public Service Commission.”
The Plaintiff responded immediately by writing to the Permanent Secretary in the Ministry of Agriculture. By this memorandum dated 21 st September, 1976 (“ B2 ”), the Plaintiff set out Bal Ramdial's remarks of 7 th August, 8 th September and 20 th September, 1976 concerning teak production. The Plaintiff alleged that these remarks tended to smear his personal work history and went on to state:
“2. The Conservator is inferring from his remarks that I am the cause of the breakdown of the B.F.I. Mill and the delay in its repair. I regard these as very serious inferences and respectfully request your personal investigation of this matter so that my name may be cleared. The Conservator appears to be impervious to my repeated explanations with the result that much professional time is being squandered in exchanging memoranda on this matter. I would like it closed once and for all in the interest of better staff relations and morale.”
Approximately one month later (24 th October, 1976) the Plaintiff complained to the Permanent Secretary about his dissatisfaction with the treatment he was receiving at the hands of Bal Ramdial ever since his return from no-pay leave on October 20, 1975, (“ B3 ”). The Plaintiff further stated:
“I suspect that the Conservator is pursuing a policy of deliberately excluding me from Divisional Matters that ought to concern me. As a result I am somewhat frustrated in the performance of my duties.”
The Plaintiff went on to set out the basis for his suspicions and requested the Permanent Secretary to look into the matter.
It would therefore seem that by 24 th October, 1976 the Plaintiff was complaining of being dissatisfied with the treatment he was receiving at the hands of Bal Ramdial ever since he returned from no-pay leave on October 20, 1975. That would seem to suggest that, contrary to what was being asserted by the Plaintiff, the relationship was not cordial.
By memorandum dated 26 th October, 1976 (“ C2 ”) Bal Ramdial responded to the Permanent Secretary and attempted to deal with the claims and allegations made by the Plaintiff in the two letters dated 21 st September, 1976 and 24 th October, 1976. The response was typical of the exchange of correspondence between both men:
“I refer to the attached claims by Mr. E. Shand which I consider sinister and full of inexactitudes and therefore wish to comment accordingly. I have been trying to search my brains for explanations which may have motivated my colleague to taint my personality. At this stage I can only come up with two reasons, namely:
(i) The officer has been peeved ever since I did not recommend him to be one of the Ministry of Agriculture's representatives on the Board of Directors of Trinidad and Tobago Forests Products Company.
(ii) The officer is seeking umbrage to cover up his poor performances about which I have written him by alluding to frustration in the performance of his duties.
I have taken time to refute all these base allegations which Mr. Shand has perpetrated to defame my personality. I doubt it is being done because of envy. It is perhaps an outgrowth of his whole intemperate attitude to be averse to censure and criticism. Notwithstanding this, I wish to suggest that Mr. Shand's productivity since his resumption on 26 th May, 1976 be reviewed, that his relationship with other professional colleagues in the Division be challenged and his open threat to the Conservator for obtaining the position of General Manager on the proposed Trinidad and Tobago Forest Products Company be thoroughly investigated.
My own opinion is that this Division with its depleted staff can ill afford Mr. Shand's aloofness, pretentiousness, evasiveness and consultative hang-ups.
Finally, I would appreciate Sir, if your findings on this whole matter could be in writing for the purposes of record regardless of which way the pendulum swings.”
The Plaintiff's status as Temporary Assistant Conservator of Forests continued into 1977. On 3 rd February 1977 (“ C11 ”) the Permanent Secretary, after referring to Bal Ramdial's earlier memorandum dated 24 th September, 1975 (“ C8 ”), enquired as to whether he would now wish to recommend that the Plaintiff be appointed permanently in view of the fact that there were existing vacancies and the Plaintiff was suitably qualified.
By memorandum dated 10 th February 1977 addressed to the Permanent Secretary (“ C4 ”), Bal Ramdial opted not to make any such recommendation stating:
“……..I am aware that Mr. Shand is interested in the recently advertised position of General Manager for Trinidad and Tobago Forest Products Limited. In view of this, I would prefer not to make any such recommendation until the General Manager's position is filled. I expect this exercise to be completed within two(2) months, providing of course, that applications from suitably qualified persons have been received.”
The Plaintiff had in fact applied for the position of General Manager of Trinidad and Tobago Forest Products Limited (Tanteak). In cross-examination, the Plaintiff testified that in 1977 he was unaware that the Permanent Secretary had enquired of the Conservator of Forests whether the Plaintiff should be made permanent and that he had only seen that document in the trial bundle. However the Plaintiff went on to say that he knew that the Head of the Department, in this case the Conservator of Forests, would be the one to have made the recommendation. It seems to me to be a reasonable inference, and I so find, that the Plaintiff would have been aware that the Conservator of Forests did not recommend him for a permanent appointment.
In 1977 as Assistant Conservator of Forests (Utilization), the Plaintiff was responsible for, among other things, teak production at Brickfield Forest Industries. By memorandum dated 7 th April, 1977 (“ B4”) addressed to the Permanent Secretary, the Plaintiff complained that Bal Ramdial had deferred his vacation leave on the ground that he had not completed his Annual Report in a manner acceptable to him. This memorandum stated:
“On April 4 th , 1977 the Conservator of Forests served notice that approval was granted for me to proceed on 19 days vacation leave making today my last working day prior to this leave. Based on this approval I made firm important personal plans. On April 6 th 1977, the Conservator of Forests wrote a further memorandum deferring my vacation leave on the grounds that I had not completed my Annual Report in a fashion acceptable to him.
(2) I submitted my annual Report following the previous year's format well in advance of my proposed leave. However, by memorandum F2/6/30 dated April 5 th , 1977, the Conservator detailed for the first time the format that he wanted for the Annual Report. I find it very inconvenient for the Conservator to defer my leave so that I may comply with instructions given at such short notice.
(3) I now find myself unable to alter my personal plans and request that you use your good office to cancel the deferment of my leave.”
By memorandum dated 27 th April, 1977 (C12) and addressed to the Permanent Secretary, Bal Ramdial sought to counter the allegations made by the Plaintiff.
“….. In the beginning of 1977, Mr. Shand was relieved of his duties at Brickfield Forest Industries to afford him time to complete his outstanding assignments. Like other Heads of Sections in the Division, he was requested to submit an annual report of his section for 1976 by March 31. The officer had sufficient time to complete this exercise.
Mr. Shand, instead of submitting an Annual Report to cover the field of Utilization, submitted a report prepared by Forester IV T. Sammy, on B.F.I. This is only one aspect of the report normally prepared by the Assistant Conservator of Forest, Utilization. Mr. Shand's first statement in his paragraph (2) is therefore misleading. I have not changed the reporting format whatsoever… Mr. Shand is trying to convey the idea that a report for B.F.I which is part of a Utilization Report represents the whole field of Utilization, and this is ludicrous.
Finally, I enclose copies of what Mr. Shand submitted (not prepared) and what is required of him as a professional officer in charge of Utilization (Chapter 7 - Divisional Annual Reports, 1971, 1972)”
Against the backdrop of the contemporaneous documents I hold, contrary to what was being asserted by the Plaintiff, that the relationship between the Plaintiff and Bal Ramdial during the period they worked together was far from cordial.
The Plaintiff's election to public office
The Plaintiff was elected a Member of Parliament on 16 th December 1986 when the National Alliance for Reconstruction (“NAR”) defeated the People's National Movement (PNM) which had been in power for approximately thirty (30) years. In December 1991 the Plaintiff demitted office when the NAR was in turn defeated by the PNM.
Whilst in government, the Plaintiff began serving as Parliamentary Secretary in the Ministry of Forestry and the Environment from 24 th December, 1986 until 1 st July, 1988 . The Plaintiff's duties as Parliamentary Secretary were to assist the Minister in the execution of his duties as Minister responsible for that Ministry (Section 82 of the Constitution). The Plaintiff's substantive post during that period was not that of a member of Cabinet. However whenever the Minister was abroad, the Plaintiff acted as Minister and would be invited to attend Cabinet meetings.
Between the period 2 nd July, 1988 and 22 nd August, 1989, the Plaintiff, although continuing to be a Member of Parliament, was employed as a Forestry Consultant to the United Nations and was based in Jamaica. During this period the Plaintiff continued in his role as a Member of Parliament by flying in and out of the country.
From 21 st August, 1989 to 28 th December 1990 the Plaintiff was a Minister in the Ministry of External Affairs and International Trade.
It is clear therefore that the Plaintiff occupied public office for the five-year period between December 1986 and December 1991.
As stated earlier, the Plaintiff was a Member of Parliament from December 1986 until December 1991. From 24 th December, 1986 to 1 st July, 1988 the Plaintiff served as Parliamentary Secretary in the Ministry of Forestry and the Environment.
Much of the controversy centres around the treatment meted out to Bal Ramdial, the Conservator of Forests, during the time the Plaintiff occupied public office, in particular during the time the Plaintiff was Parliamentary Secretary in the Ministry of Forestry and the Environment from 24 th December, 1986 to 1 st July, 1988. That would necessarily entail focusing on the Plaintiff's conduct while occupying public office
It is therefore necessary to consider among matters, what happened during the time the Plaintiff was Parliamentary Secretary in the said Ministry. The Plaintiff began in chief by denying that he was a close adviser of the Minister. That however was an untenable position causing the Plaintiff to concede in cross-examination that the Minister, Lincoln Myers, did not have a background in forestry, so that in forestry matters the Minister consulted him and relied on his advice from time to time . With respect to the inquiry conducted from January 1987 onwards, the Plaintiff admitted that he advised the Minister on the matters that were the subject of the inquiry.
JANUARY 1987 to FEBRUARY 1987
Very shortly after the Plaintiff was appointed Parliamentary Secretary, and as a result of a complaint made by the General Manager of Tanteak, Ian Youngloo, a number of meetings were convened between the period January 1987 to February 1987. It would seem that the majority of these meetings were chaired by the Minister himself. Exhibit “ ES3 ”, the Notes of one of the meetings held on 22 nd January, 1987 was admitted in evidence without objection by Mr. Marcus.
The Plaintiff in his evidence testified that this was not the first meeting held and that he recalls there were about three meetings in all. The said Notes reveal that the Plaintiff chaired that two-hour meeting. The Plaintiff explained that the reason why he chaired that meeting was because the Minister was not available on that day. The said Notes outlined the general purpose of the meeting which was to respond to a complaint from the General Manager of Tanteak that certain officers in the Forestry Division of the Ministry were frustrating the viability of the company . This complaint was described as being “double barrelled” meaning;
(a) that the officers in control of standing timber were constraining the supply of raw material to the company;
(b) that a certain Board member, appointed as a result of a recommendation by this particular Ministry, was probably the cause of restricting finance for implementation of adequate manufacturing facilities.
The General Manager of Tanteak was then asked at this meeting to elaborate on these charges, which he did. The said Notes set out at para. 8, and I quote:
“8. In defence , the Conservator of Forests stated that on paper there were approximately 2,500 acres of land on which teak was first planted. From 1940 large-scale production began on a 100-acre per annum basis and accelerated 47 years later. However, over the past 5 years, the Forestry Division had been planting roughly 250 acres of teak annually. He further stated that in terms of a report which suggested a rotation age of 45 years a yield of only 500 acres per annum could be challenged.”
It is clear therefore that the allegations were directed at Bal Ramdial who was required to defend same.
The said Notes go on to show that there was disagreement with Bal Ramdial's assessment of the situation and also reflect that Bal Ramdial was in the main required to deal with all of the issues raised in the meeting. The said Notes also show that the Plaintiff, as Chairman of the meeting, was an active participant who made several enquiries of Bal Ramdial with regard to his stewardship. The Plaintiff in his testimony at trial agreed that he asked Bal Ramdial questions at the meeting. Moreover the Notes reflected that the Plaintiff as Chairman of the meeting also requested TANTEAK and Forestry officials to prepare themselves for entering into a satisfactory agreement at the next meeting, resulting in an adequate flow of material from one entity to the other.
Having regard to the allegations made by the General Manager of Tanteak, and the series of meetings held with Bal Ramdial between January 1987 and February 1987 for him to respond to those allegations, Bal Ramdial prepared a detailed report dated February 25, 1987 entitled “Trinidad and Tobago Forest Products Company Limited (TANTEAK), A Retrospective Analysis.” This report disputed the basis of the allegations made against him and sought to show, among other matters, that Management's contention that the failure of the Company to achieve financial viability was due to the inadequacy of raw material was not true. On the contrary the report (at page 6) showed that the raw material supply was in excess of the company's needs in relation to its efforts to market its products. After the publication of this report, no further meetings were held.
In cross-examination the Plaintiff was unable to say whether that letter which formed the basis of the complaint by the General Manager of Tanteak was ever discussed with Bal Ramdial prior to those meetings being held. He said he did not discuss that letter with Bal Ramdial prior to those meetings. However Bal Ramdial in his letter to the Chairman of the Public Services Commission dated December 9, 1987 made the point that no one had the decency to furnish him with a copy of the letter. Again because of the contemporaneous nature of the document, and the fact that no one, including the Plaintiff, sought to place on record any other explanation, I hold that Bal Ramdial was not provided with a copy of that letter prior to him being called upon to defend the allegation.
FEBRUARY 1987 TO MAY 1987
Junior staff conducted investigations with respect to two Samaan logs allegedly stolen by Bal Ramdial from the Cumuto Forestry Compound. Investigations revealed that the two logs were bought for the Sai Krishna Home and were paid for by Bal Ramdial on November 20, 1985. The results of these investigations are contained in a report dated 18 th November, 1987 prepared by an Assistant Conservator of Forests, V. R. Rampersad (“C6”) who also found that there was no evidence to support any claims of irregularity. It should be noted that this allegation with respect to larceny of logs only surfaced approximately 14 months after the purchase of same.
In chief the Plaintiff said he was unaware of any investigation ordered to be conducted by junior staff with respect to two samaan logs allegedly stolen by Bal Ramdial. The Plaintiff in cross-examination testified that he had a vague recollection of junior forest officers coming to him and making allegations against Bal Ramdial with respect to the unlawful removal of two samaan logs. He asked them for their evidence and they had none. He therefore showed them his door. He further testified that that was all he knew about the allegation with respect to the missing samaan logs.
The Plaintiff went on to testify that he did not know how the investigation came about. He said while he was Parliamentary Secretary, he had no knowledge of an investigation taking place with respect to any samaan logs. Clearly that could not be true as the Plaintiff himself had stated in evidence that he was aware while he was Parliamentary Secretary that Bal Ramdial was writing to the Public Services Commission, as the Permanent Secretary had discussed the correspondence with him. The Plaintiff referred to the document dated December 7,1987 (“C7”) as that which the Permanent Secretary had discussed with him. In that document Bal Ramdial expressly made mention of junior staff being instructed to conduct investigations into the larceny of samaan logs. The question can be asked, why would the Plaintiff seek to distance himself from knowledge of this investigation? And why would junior officers be coming directly to the Plaintiff to make such a report? Further with respect to this issue and the others alleging criminal misconduct against Bal Ramdial, why did the Plaintiff make no effort to investigate the complaints raised by Bal Ramdial in the said document bearing in mind that the Plaintiff conceded that he had assisted in causing the allegation with respect to the missing guns to be spread?
Notwithstanding the Plaintiff's knowledge that these complainants had no evidence, it is clear that the investigation was undertaken, resulting in the above report of 18 th November, 1987. However the Plaintiff denies that he initiated that complaint or had anything to do with same.
APRIL 1987
On 29 th April, 1987 the Plaintiff in his capacity as Parliamentary Secretary made serious allegations against Bal Ramdial on TTT Panorama's Newscast which is normally broadcast from 7.00 p.m. The full text of what was said by the Plaintiff is as follows (" C15 ”):
“In this report there are certain areas where we have to take certain actions as far as accountability is concerned, for example, the question of chairing the Conservation of Wildlife Committee, a public servant in this Ministry, it's written into the law that he must chair these meetings and to hear that he has not chaired them since 1984 demands of the gentleman an explanation and this explanation is going to be sought of him. He is accountable to the people of Trinidad and Tobago.
Also, in the report we find that there is a report that revolvers have vanished, revolvers that were supposed to be in the custody of the Conservator of Forests. Now this bears an investigation. Now one party said that the revolvers were handed over to the St Clair Police Station; St Clair Police Station says that they have no record of that and it is just hanging in mid-air. We have to get to the bottom. Somebody is to be held accountable for the disappearance of those firearms and we are going to look into that.”
A few days after, on 4 th May 1987, Bal Ramdial wrote the Permanent Secretary (“ C15 ”). This memorandum sought to deal with the two issues raised by the Plaintiff and made the point that the relevant information could have been obtained from the records and appropriate personnel at the Forestry Division and at the Ministry. The letter states, inter alia:
“I deal with the first issue. The Permanent Secretary…. directed that all Wildlife matters be channelled and handled by the Deputy Conservator of Forests. The reason which the Permanent Secretary conveyed verbally to me in taking the decision was that since one of my blood relatives was involved in Wildlife Management and Conservation the administration of this part of the Division's functions may be more objectively handled by the Deputy Conservator of Forests than myself. I had no option but to comply, reluctantly, in order to give effect to the intent of the Permanent Secretary.
In those circumstances it was clearly administratively better to permit all aspects of Wildlife Management including the Chairmanship of the Wildlife Conservation Committee to be undertaken by the Deputy Conservator of Forests than to interpose myself between chairing the committee and the effective discharge of the decisions of the Committee. This permitted continuity in the Section's affairs.
I have however held myself always available to the Deputy Conservator of Forests for consultation on all technical, professional and administrative matters relating to Wildlife Management and Conservation.
I now deal with the second issue revolving around the custody of firearms. A directive was issued to me by the Permanent Secretary…. that in light of certain information which he received I should forthwith hand over to designated personnel and (sic) firearms under the control of the Conservator of Forests. I complied and I attach hereto a copy of the directive and receipt of the relevant firearms.
In view of the potential implications for myself as a Public Servant which could be derived from a biased and uncritical interpretation of the statements made by the Parliamentary Secretary, I am copying this memorandum to the Head of the Civil Service under confidential cover and the Secretary of the Public Services Association.”
With respect to the issue of the missing revolvers, it is very important to note that the undisputed evidence is that the firearms and ammunition were lodged at the St Clair Police Station around March 1980 , approximately SEVEN YEARS before the statement made by the Plaintiff on national television. Further by memorandum dated 10 th April 1980 , Bal Ramdial informed the Permanent Secretary that in compliance with the letter's request, the firearms and ammunition were collected by Inspector Robert on 12 th March, 1980 , and also detailed the respective police stations where other firearms were lodged. That would suggest not only that there was documentation in the Ministry which could have verified the information but, as Bal Ramdial stated, the relevant information could have been obtained from the appropriate personnel at the Forestry Division and in the Ministry.
The Plaintiff was cross-examined extensively by Mr. Martineau as to why he rushed on national television without making any enquiries. Suffice it to say that I was not impressed nor satisfied with his explanation. I had asked Mr. Marcus whether he would have described the Plaintiff's conduct in these circumstances as reckless, but Mr. Marcus was not prepared to go that far. However he was prepared to concede that the Plaintiff's conduct in the circumstances was irresponsible.
In chief, the Plaintiff testified that the incoming Minister was given a written report by the Wildlife Section of the Forestry Division which authorized outstanding problems in the Wildlife Section that they wanted the Minister to be apprised of. One paragraph of that report made reference to revolvers that were supposed to be in the custody of the Conservator of Forests which could not be accounted for, which could not be found. At the same time the report got into the hands of TTT, and one of the reporters telephoned him at the Ministry and asked for a comment on camera on the paragraph of that report. Upon receiving that telephone call he brought it to the attention of the Minister who was busy and authorized him to handle the matter with the reporter.
The reporter duly arrived at his office at the Ministry and set up his camera etc and asked him to comment on that particular paragraph. He had the report before him. He acknowledged on camera that the report did indeed make reference to guns that were supposed to be in the custody of the Conservator of Forests were allegedly unaccounted for and that there would be an investigation into the matter.
In chief the Plaintiff said that he subsequently asked the Permanent Secretary to look into the matter. The Permanent Secretary reported back to the Minister that the guns were located in the police armoury. The Plaintiff testified that he made that known as a journalist from the Express newspaper telephoned him to confirm that the guns had in fact been found and he confirmed this to him.
In cross-examination, the Plaintiff testified that even though he thought it prudent to give a television interview covering the disappearance of revolvers, he did not discuss same with Bal Ramdial
The Plaintiff was asked why he thought it was necessary to repeat what was in the report on television, and he replied that the person was in possession of the report and wanted a comment from the political directorate. It was appropriate to comment on it so all concerned would know that the political directorate was not sitting idly by and ignoring the report
The Plaintiff further testified that up to the time of the report, he did not know if there was any public dissemination of same. However he himself had not seen the report or any information contained in same reported in any newspaper or broadcast before he went on the Panorama news programme. Clearly that suggested that there was no public dissemination of same. The Plaintiff further admitted that by going on national television, he assisted in spreading the allegation .
In re-examination on this issue, the Plaintiff explained that he did not speak to Bal Ramdial before going on national television as the television station called and said they had the report in their possession, and were going to air same on Panorama that night, and they wanted a comment on it, and they asked whether they could come over right away. He cleared it with the Minister who gave his approval for him (the Plaintiff) to give the station an interview. The Plaintiff went on to say there was no time for him to discuss the large report with Dr. Ramdial before the interview.
In further cross-examination the Plaintiff said that the television station called him at 10.30 a.m. and they got to his office about 11.00 a.m. He insisted there was no time to discuss the report with Bal Ramdial. He admitted there was no compelling reason why he had to be interviewed at 11.00 a.m. He went on to further admit that he could have directed the television station as to what time he wanted to give the interview. Quite startlingly, the Plaintiff went on to say that it didn't occur to him that he could have told them that he would like to speak to Bal Ramdial just before he spoke with them.
I had asked Mr. Marcus whether he would have described the Plaintiff's conduct in these circumstances as reckless, but Mr. Marcus was not prepared to go that far. However he was prepared to concede that the Plaintiff's conduct in these circumstances was irresponsible. I disagree. I am of the view that the reasonable person could draw the conclusion that it was at least reckless.
MAY 1987
Shortly after, on 15th May, 1987, Minister Lincoln Myers made a statement in the House of Representatives, which was subsequently televised on the 7 o'clock Panorama news, concerning the operations of TANTEAK (“ C3 ”). In that statement the Minister stated that by “letter dated 8 th January, 1987, the General Manager of TANTEAK informed me that he was aware of a conspiracy by a clique of individuals to acquire TANTEAK and hence gain exclusive concession rights to the Nation's teak and pine resources from which they stood to make large profits. He stated that the chief means of achieving this acquisition was to stifle and inhibit the progress and viability of the company by constraining its raw material supply. He alleged that this stifling was executed by the Conservator of Forests who was also at the time Chairman of the Board of TANTEAK.”
The Minister then went on to say that in the light of those allegations, the Director of Forestry Resources and Management was assigned to investigate same. That report indicated that :
i) a private company, Industrial Sawmilling and Pallet Manufacturing Limited, enjoyed a near monopoly in pine harvesting;
ii) this near monopoly was obtained in uncompetitive circumstances;
iii) the justification for being favoured by the Forestry Division was highly questionable.
Having regard to the unsatisfactory state of affairs, the Forestry Division was directed to formulate an equitable policy, subject to the approval of the Ministry, on the sale of pine and was further directed to suspend all pine sales until the policy was approved. The policy as formulated and approved gave TANTEAK the first option to purchase all Forestry Division pine. All pine not desired by TANTEAK would be disposed of by a process of competitive bidding. The Minister regarded the sawmilling company's privileged position in the past as “a favour granted by an over-generous Forestry Division.”
In May 1987 Bal Ramdial suffered a heart attack and was sent on leave.
JULY 1987
In July 1987 Dr Michael Gane, a FAO Consultant, cast doubt on the report prepared by Selwyn Dardaine, which said report was adopted and implemented as divisional policy:
"There are some inconsistencies and inescapable results which cast serious doubt on the reliability of the data and it is difficult to understand exactly how the data was used to arrive at the conclusion... My general conclusion is that the uncertainties about the data and the way it was used make the rotation length recommendation in the report too unreliable to carry much weight."
In July 1987 chartered accountants, Price Waterhouse, in their report entitled "An Approval of the Organisation, Structure Systems and Approaches" of the Ministry, found that there were personality clashes within the Forestry Division and recommended that the Ministry urgently address the issue.
NOVEMBER 1987
After his illness, Bal Ramdial resumed duties in November 1987 and was instructed to vacate his office at Long Circular Road and take up a special assignment at the Ministry's headquarters in St Clair.
Bal Ramdial also sought an apology from members of the Wildlife Conservation Committee with respect to the report which alleged that guns under his control were missing and was verbally abused over the telephone by one member from whom he had enquired whether or not he had received his (Bal Ramdial's) correspondence on the subject matter.
The Minister, through the Permanent Secretary, launched a further investigation into ammunition under the control of Bal Ramdial, the allegation being that Bal Ramdial was at fault.
DECEMBER 1987
Bal Ramdial, by letter dated 9 th December, 1987 (" C5 ") addressed to the Chairman of the Public Services Commission and copied to the Permanent Secretary in the Ministry and the Head of the Public Service, complained of the treatment meted out to him from the beginning of 1987. He contended that he had been subjected to interrogations, press castigations and investigations which were aimed at belittling him, lowering his public image and tarnishing his character and integrity. Bal Ramdial went on to provide examples of such occurrences in 1987.
Bal Ramdial began the letter by questioning the motive behind placing him on special assignment work having him vacate his office at Long Circular Road, St James, and occupying a much smaller office at the Ministry's Head Office in St Clair:
“I hold the substantive post of Conservator of Forests since 1970 and I am of the view that during this period, I have performed creditably and competently in the absence of the contrary. On 17 and 18 November, 1987 I received verbal and written instructions from the Parliamentary Secretary E. Shand and Permanent Secretary D. Punch….. respectively to take up a special assignment which is described in the attached memorandum. (Document 1). I was requested to vacate my office at Long Circular Road, St James and to occupy a much smaller office at the Ministry's Head Office in St Clair by 18 November, 1987. I reluctantly carried out the instruction, notwithstanding the extremely short notice.
The reasons for my choice remain unclear. A report titled “”Guidelines for Environmental Administration in Trinidad and Tobago” has already been prepared. On page 9 of this report, the author indicated that the Technical Director of Solid Waste Management Company and the Medical Director of Health and the environment are suitably qualified to head the New Environmental Organization mentioned in Document 11. I endorse this view and wish to add that the author, who understandably prefers to be modest in the circumstance, is also suitably qualified for the new post. Incidentally, the author and the two directors are members of the Standing Committee on the Environment. Because of their knowledge of the discipline and their familiarity with the present exercise, it seems logical that one of them ought to have been given this assignment. I am, therefore, forced to view this new assignment not as a challenge, but as an undertaking “to prepare tracks for aguti to run.”
From the beginning of the year I have been subjected to interrogations, press castigations and investigations aimed at belittling me, lowering my public image and tarnishing my character and integrity.”
Bal Ramdial then went on to chronicle examples of his experiences in 1987
January - February 1987
(1) During the first two months of the year, I was subjected to long weekly interrogative sessions on Tanteak, a State enterprise of which I was Chairman, by the Honourable Minister and Parliamentary Secretary….
The sessions were conducted in the presence of my juniors. They were based on a letter from the General Manager of Tanteak which no one had the decency and courtesy to furnish me with a copy. The imputations and innuendoes were pernicious. In order to arrest the harassment, I submitted a detailed and comprehensive report titled “Tanteak - A Retrospective Analysis,” discussing frankly the problems and misconceptions of and misinformation on Tanteak. The report was never acknowledged, but it brought some respite from the prevarications and fabrications which were aimed at discrediting me (Copy of Report enclosed - Document 111).
February - May 1987
(2) Junior staff were instructed to conduct investigations into two Samaan logs allegedly stolen by me, from the Cumuto Forestry Compounds. Fortunately it was found that the logs which were bought for the Sai Krishna's Home were duly paid for by Dr. Ramdial.
April 1987
(3) On 29 th April, 1987, serious allegations about missing revolvers were made against me by Mr. E. Shand the Parliamentary Secretary on TTT Panorama newscast …….
The custody of Government firearms outside the Police Service is a very highly confidential matter and, in my experience, information, relating to is never publicly aired. I find the scurrilous statements on the accountability of guns as it pertains to me, to be, not only injudicious and volatile, but also injurious to my integrity and well-being. This matter has caused me and my family much anguish and many sleepless nights. The unsubstantiated statements instilled fear in and exposed me and my family to serious danger, particularly from unscrupulous drug pushers, thugs, murders and rapists who may have perceived me to be either in possession of firearms at home, or worse still, a dealer in illicit firearms. The intent of these public statements was designed to mislead the public and damage my character as a citizen and as a senior public servant. The absence of consultation between the Parliamentary Secretary and myself prior to his appearance on television, supports this view
However I was recently cleared of the allegations by the Permanent Secretary, Ministry of National Security who advised that the firearms were found safely lodged in the Police Armoury. (Document 1V).
May 1987
(4) On the 15 May, 1987 the Minister…. read in Parliament a prepared text in which certain allegations were made against me, implying improper conduct on my part.
It was subsequently televised in the seven o ' clock panorama news.
This I consider a serious matter especially since the Minister chose to take advantage of his parliamentary privilege to make insinuations and cast aspersions on my character and integrity rather than to present to parliament factual unalloyed information.
It is extremely odd that the Minister chose not to pursue his concerns further bearing in mind that he had already embarked on a path of persecution based on rumours and hearsays . I find it difficult to conceive how I could have engineered the take over of Tanteak by a clique of individuals in the full view of a PNM or NAR cabinet. It is patently clear that certain lobbyists were successful in selling their dirty wares to appreciative and gullible customers.
The consequence of the new assignment is that I have been removed from my substantive post of Conservator of Forests against my wishes, I had no choice in the matter. However, for your information, Sir, I have made forestry my life-long profession. I have acquired an international reputation in forestry and I wish to maintain my professional association with the field. The present assignment denies me the enjoyment of the benefits which I have acquired at great personal sacrifice; this is quite apart from the reality that my sudden and pre-emptory removal from the position of Conservator of Forests into which I was duly appointed by the Public Service Commission has reduced my status and authority in relation to my junior professional and other colleagues both in the Forestry Division and other branches of the Public Service. Indeed, this special assignment is but a continuum of the humiliation and embarrassment to which I have been subjected. I therefore feel that my fundamental rights have been breached.
While I do not wish to be insubordinate to my Minister and Parliamentary Secretary, I nevertheless consider the removal from my substantive post as contrary to the principles of natural justice and in the circumstances, I am seeking your intervention into and guidance on:
(1) my status as Conservator of Forests and Head of the Forestry Division from which I have not applied for promotion or assignment with or without financial gain to myself;
(2) the legitimacy of the special assignment;
(3) the lowering of my status and privation or loss of benefits deriving from my membership on Boards and Committee requiring the exercise of my professional discipline;
(4) the relative hostile treatment being meted out to me;
(5) the duration of my assignment, bearing in mind, item (5) page 2 of Document 1 which can go on “and infinitum.”
I would deeply appreciate your kind and early attention to this my request for justice and fair play.” [EMPHASIS ADDED]
JANUARY 1988
The ammunition the subject of the November 1987 investigation was duly accounted for and subsequently collected by Acting Inspector Bovell on 19 Jan 1988 in the presence of S. Faizool and SPC Michael Lewis #2056.
The Ministry requested that Bal Ramdial be medically examined by a Medical Board and on March 25 1988, Bal Ramdial passed the medical examination.
MARCH 1988
By Cabinet Minute No. 388 dated March 3 1988, Cabinet agreed to changes of title in the Ministry. The only significant change was that of the Conservator of Forests to Director of Forestry.
As a result of the attempt to implement a new policy by stopping the supply of raw material to Industrial Sawmilling Ltd, the company commenced judicial review proceedings against the Minister of Agriculture and the Plaintiff in his capacity as Parliamentary Secretary challenging their decision. In its statement, the company sought to challenge (i) the decision and/or instruction of the Plaintiff given and/or made on or about 19 Feb 1987 and referred to in his letter to Keith Mahabir dated the 13th March, 1987 that supplies of pine logs to the company be frozen; (ii) the decision of the Minister and/or the Plaintiff made on or about 6th May, 1987 and recorded in a letter from the Plaintiff to Keith Mahabir dated the said 6th May, 1987 that: (a) Tanteak will be given the first option to purchase all pine offered for sale by the Forestry Division; (b) the company should apply to Tanteak for pine raw material which Tanteak had not harvested and might not be using. Mr. Justice Blackman delivered his judgment in the said proceedings, H.C.A. No. 4336 of 1987, on 17th March, 1988 and at page 24 considered that the real question to be resolved was whether the Parliamentary Secretary had acted illegally in having the company's activities stopped in relation to the coupes at Brickfield and Cap-de-Ville or by instituting the policy which he had, so as to adversely affect any rights the company had properly been granted under the Crown Lands Forest Produce Rules (" the Rules") or under the State Lands Act Chapter 57:01 (" the Act"), and whether those rights were based on licences or concessions. Blackman J. held that the company had been granted concessions. At pages 27-29 Blackman J. stated:
"Parliament vested the power in the President to make regulations for the administration, management and protection of State Lands. The Regulations have been deemed to have been made by the President. Therefore, neither the Minister nor the Parliamentary Secretary has a free hand with regard to these matters in respect of State lands in the face of the regulations made by the President, or deemed to have been made by him.
The steps taken by the Parliamentary Secretary or the Forestry Division were not authorised by the Regulations. If the Forestry Division wishes to introduce the system proposed..., regulations would have to be made amending the Rules. None were so made. I am not now questioning the motives of the Parliamentary Secretary. They are, I am sure based upon his desire to act in the public interest. But in so doing he cannot override the law.
If the Parliamentary Secretary or the Forestry Division acted in a manner for example in formulating a policy which is contrary to or does not fall within the regulations made by the President under Section 4 of the Act, their acts would be null and void. Similarly if the [new] policy cuts into the area of management, administration or protection of State lands, then it will have run foul of Section 4 and if the interests of the company have been prejudiced thereby it will be to that extent null and void because it is only the President who can do so by regulations and the President has already been deemed to have made those regulations under the Act.
It would seem to me and I so hold that the instructions given by the Parliamentary Secretary that the company should be stopped from harvesting pine in the Brickfield and Cap-de-Ville coupes and the policy stated in K.M.22, encroaches on the Rules and matters specified in Section 4 of the Act and is null and void for that reason.
In my view the policy in K.M.22 will have to be embodied in appropriate regulations. Therefore the proper course would have been to amend the existing law to accommodate it. Neither the Parliamentary Secretary nor the Cabinet could change the law merely by proposing a policy.
The Parliamentary Secretary does not under the State Lands Forest Rules have the power to freeze the sale of timber to anyone who has already been sold such timber by the Conservator of Forests or to whom the Conservator of Forests had granted a license or concession to harvest timber. Rules were made by the President for the management, administration and protection of State lands. The power to grant licences or concessions in respect of timber on State Lands is given to the Conservator of Forests. Neither the Minister nor the Parliamentary Secretary could arrogate to themselves powers not given them under the Rules in these circumstances.
I think it was wrong for the Ministry to deal with the matter in the way it did."
NOVEMBER 1988
In November 1988, Bal Ramdial was instructed to proceed on vacation leave and did so on 19th December, 1988.
JULY 1989
Bal Ramdial resumed duties at NIHERST on special assignment.
AUGUST 1989
Acting Corporal Nero, in company with another officer from the Fraud Squad, visited Bal Ramdial at NIHERST to conduct an investigation. Bal Ramdial requested that the matter be discussed in the presence of a third party. Acting Corporal Nero objected and decided not to proceed with the investigation at that time. Bal Ramdial was never told the purpose of the investigation.
By Cabinet Minute number 1511, Cabinet agreed to the creation of a supernumerary post of Director of Forestry for the substantive holder of the post of Conservator of Forests. Cabinet further agreed that a new post of Director of Forestry should be created to which the Deputy Conservator of Forests would be proposed for our appointment.
SEPTEMBER 1989 ("C7")
Bal Ramdial once again wrote to the Chairman of the Public Service Commission by letter dated 19 September, 1989 ("C 7"). In that letter he complained, inter alia, about the abuse of political power :
"I wrote to you on 7 December, 1987 and sent a reminder dated 17 February, 1988; you replied on 22 February 1988 advising that you were considering the matter. I attach copies of this correspondence for your easy reference. I had hoped that by now you would have completed your consideration of the issues which I raised; however, I remain optimistic that you still have the matter under consideration and that I will hear from you soon on the action which you propose to take.
In that letter I set out the injustices and harassment to which I have been subjected at high political level . I sought your intervention for justice and fair play as the Constitution allows and provides. I wish to advise that, while you have been considering the matter, things have become worse and that all the concerns and fears which I expressed in my letter of December 1987 have indeed become a reality. This is reflected in the fact that on August 10, 1989, by Minute 1511, Cabinet decided that a supernumerary post of Director of Forestry should be created for the substantive holder of the post of Conservator of Forests i.e. myself, and that a new post of Director of Forestry should be created to which the substantive Deputy Conservator of Forests would be proposed for appointment
The Cabinet Minute, in paragraph 2 (1) makes mention of my suitability and experience as a professional officer. The facts of the matter however, and the sequence of events, demonstrate that the words used are merely a smokescreen to conceal the underlying purpose of people at high political level , contrary to the unequivocal assurances given by the present Prime Minister of the country, to denigrate me and my professional standing and make it impossible for me to perform in my selected vocation . This is the underlying purpose of the Cabinet Note which resulted in Cabinet Minute 1511. The fact that the whole process is already severely undermining the standing of the Government in the eyes of the international community, when questions of the conservation of the natural environment are being discussed is merely a measure of the extent to which certain people in political authority are prepared to go in order to denigrate an individual whose only source of protection is the Constitutional provision of a Public Service Commission . I ask that, in the discharge of your functions under the Constitution, you consider the facts which I present below, and the circumstances which have culminated in the Cabinet Minute under reference." [ Emphasis Added .]
Bal Ramdial then set out in chronological order the events from January 1987 to August 1989. Some of the incidents in 1987 have already been referred to earlier in my judgment, but I add some of the concerns raised by Bal Ramdial in the said letter.
January 1987 to February 1987
After referring to his interrogation, Bal Ramdial referred to the said report he prepared entitled "Tanteak, A Retrospective Analysis," in which he made certain allegations against Selwyn Dardaine for having received $28,000.00 for the preparation of a study. Bal Ramdial had also implied that Divisional labour was used in the preparation of the report. Bal Ramdial went on to state:
"The investigation demonstrated that there was no impropriety by the Conservator of Forests or the Forestry Division; the fundamental purpose of the investigation was however served i.e. to cast doubt on the integrity of the Conservator of Forests. In other words, a Public Servant was being subjected to harassment by the political directorate ." [ Emphasis Added .]
Bal Ramdial went on to deal with the period April 1987 to August 1989 as follows:
"(iii) April 1987: Having failed to establish any credible basis, for alleged dishonesty on my part , the attacks on my administrative competence assumed a new and, from the standpoint of my family's security, a potentially lethal tone. Mr. Eden Shand, Parliamentary Secretary, appeared on television and read from a report that guns, for which I was responsible, disappeared. The report was prepared by the Wildlife Section of the Forestry Division, and the Wildlife Conservation Committee. Mr. S. Dardaine, Deputy Conservator of Forests, was at the time in charge of the Wildlife Unit. But the records of the depository of the guns were available, the guns were in fact located at the Police Armoury and receipts were available to show that they were there at the time. The questions which continue to puzzle my colleagues and me are -- Who fabricated the story? Why has no one in authority frowned on its inaccuracies or questioned its authenticity? Why was the question not raised initially with the Conservator of Forests who was being implicitly charged with negligence? Why was the report submitted directly to the Minister/Parliamentary Secretary and not through the Conservator of Forests? Why was the report given such wide publicity? Why was it not investigated before being televised? Unbelievable but true, the miscreants and perpetrators of this crime against me and my family go unscathed and are even promoted...
(iv) May 1987: Minister Lincoln Myers using Parliamentary privilege made some libellous statements regarding my performance of duties claiming that I was an over generous Conservator, and imputed collusion with members of the Public . But the charges were baseless as the statements of Justice Ivol Blackman showed (See item xvi below). But Minister Myers has not retracted his statements.
(v) May 1987: The persecutions of the five months brought the expected physical effects on my health. I suffered a heart attack caused by excessive stress.”
(vi) July 1987: After referring to Dr Michael Gane's (the FAO consultant) review of Selwyn Dardaine's report, Bal Ramdial went on to state:
"You will recognise that this is a professional way of saying that the author of the report suborned professionalism in its preparation. What I find disturbing is that this professionally unsound report was not only adopted but was also implemented as Divisional Policy without a murmur from the authorities at the Ministry even though recommendations against its use were made to the Permanent Secretary by the Conservator of Forests."
(vii) July 1987: After referring to Price Waterhouse's report that there were personality clashes at the Forestry Division and its recommendation that the Ministry should address the serious personality issues as a matter of urgency Bal Ramdial stated:
" I was never interviewed and no one thought it fit to do so. In fact only a select few were interviewed. However, it is not mere coincidence that Minister Myers and Shand collectively chose to move me out of Forestry despite my professional ability outlined in Cabinet Minute 1511.
(viii) September 1987: The Permanent Secretary in the Ministry of National Security advised that the firearms in question raised in item (iii) above were lodged at the Police Armoury and that the relevant documentation was always available for inspection by the competent authorities.
(ix) November 1987: I resumed duties after my illness and was promptly removed from my office at Long Circular Road and sent to the Ministry in St Clair. I had no choice in the matter. The basic facilities to which a person of my rank are entitled were not provided. I should mention also that my secretary had neither desk nor chair for two to three weeks.
x) November 1987: I sought an apology from members of the Wildlife Conservation Committee who collaborated with members of the Wildlife Section to produce that mischievous report about guns missing under my charge. I was abused over the phone by one member from whom I inquired whether or not he had received my correspondence on the subject matter. To date no one has had the courtesy to acknowledge my correspondence, reply or apologize.
(xi) November 1987: Having failed in the trumped-up charge relating to the firearms , Minister Myers instituted, through Permanent Secretary D. Punch, a further investigation into the ammunition under my charge, in which, it was alleged, I was at fault. I cooperated fully.
(xii) January 1988: All the ammunition was duly accounted for and subsequently collected by Acting Inspector Bovell on 19 January 1988 in the presence of Mr. S. Faizool and Michael Lewis SPC# 2056. All the documentation was available for review. I should add that when the ammunition was collected from the official precincts, Mr. Dardaine, one of the authors of the Report which misleadingly mentioned that the firearms were missing, opted not to be present.
(xiii) January 1988: The Ministry then requested me to be medically examined by a Medical Board on Friday 25 March 1988. I passed the medical test.
(xiv) February 1988: I wrote to Mr. D. Punch, the Permanent Secretary, Ministry of Food Production, requesting a public apology for the damaging statements made specifically to discredit me. No reply has been received.
(xv) March 1988: Cabinet by Minute No. 388 dated 3 March 1988 agreed to the changes of titles in the Ministry of Food Production, Marine Exploitation, Forestry and the Environment. Surprisingly, the only title change of note in the entire Ministry was that of the Conservator of Forests to Director of Forestry. I was never party to any discussions regarding justification of this change. The reasons are obvious. Notwithstanding, I should mention that the title of Conservator, which is self-explanatory, is more appropriate, meaningful and applicable in today's world of crises caused by the serious lack of natural resources conservation. Conservation means wise use, hence forest conservation, soil and water conservation, wildlife conservation, energy conservation etc The title of Conservator facilitates easy communication and recognition between and among Conservators of Forests in other Commonwealth countries. The Conservator of Forests is an integral part of the administration of the State Lands Forests Produce Rules, the Forest Act, the Sawmills Act, the Conservation of Wildlife Act and the Litter Act and therefore plays a very different role from the other Directors in the Forests Division and the entire Ministry of Food Production, Marine Exploitation, Forestry and the Environment. Further, there will be a substantial cost to implement this seemingly unnecessary title change at a time when money is supposedly in short supply. The burning question which this prompts is what are the technical, administrative, financial and educational benefits which our society can derive from this title change?”
(xvi) March 1988: Bal Ramdial referred to the judgment of Mr. Justice Blackman.
“(xvii) November 1988: I was instructed to proceed on Vacation Leave which I did on 19 December 1988.
(xviii) July 1989: I resumed duties at NIHERST where I am currently working on another special assignment.
(xix) August 1989: Acting Corporal Nero, in company with another officer from the Fraud Squad, visited me at NIHERST to conduct an investigation. Being fully aware of the revelations made in the La Tinta Affair, I requested that the matter be discussed in the presence of a third party; Acting Corporal Nero objected vehemently and decided not to conduct the investigation at the time. I still do not have a clue about the purpose of this investigation. Was it intimidatory? To cause embarrassment? From what I have outlined above, it may have been all of these and more; besides, I have not been told that there are any matters which still await my reply or any explanation. The whole matter is frighteningly reminiscent of a Police State.
(xx) August 1989: Cabinet by Minute No. 1511 agreed to the creation of a Supernumerary post of Director of Forestry for the Conservator of Forests. This was the final political act to remove me from my position which I am professionally qualified to hold.
From the sequence of events outlined above, a clear pattern of victimisation emerges:
(a) Firstly, falsehoods, and counterfeit statements were used ruthlessly to defame and villify me. (See items ii,iii,iv)
(b) Secondly, political harassment was instituted in an unrelentless manner to frustrate, agonise, unsettle and to mentally disturb me. (See items i,xi,xvii)
(c) Thirdly, political power was used unabashedly to humiliate me through the annulment of the post and title of Conservator of Forests with which the public had associated me. (See items vii,xv,xvii,xix).
Finally my suitability for the Supernumerary post has already been presented in Cabinet Minute No. 1511.
In your consideration of the suitability of a person to be appointed to head the Forestry Division i.e. the Director of Forestry, you may wish to attach some weight to the observations made about the person whom Minister Myers (and Shand) is considering for the job. These observations are partly my own and partly those of other supervisors...
I have presented you with a comprehensive account, which is by no means exhaustive, of some of the inequities and injustices to which I have been subjected and which I can substantiate . I trust you will find the time and patience to study my case and take the appropriate action as you deem fit and necessary.” [ Emphasis Added .]
Libel or Slander
One of the issues raised in the instant case is whether the broadcast of the said programme and the publication of the words spoken by the interviewees, if defamatory, constitute a libel or slander at common law.
The Defendants contend that the substance of the Plaintiff's complaint is in the words spoken in the course of the television programme itself, not the broadcast of the images. In those circumstance the Defendants contend that the television broadcast of the interview, if actionable, is actionable as a slander and not as a libel.
The Plaintiff contends that the television broadcast was a libel and not a slander, since libel is committed when defamatory matter is published in a permanent form or in a form which is deemed to be permanent. As regards matter recorded on a record, tape or some other recording instrument, the publication of the recorded matter would be publication in a permanent form and would therefore amount to a libel. The Plaintiff further contends that in the instant case copies of the subject tape were also given to members of Bal Ramdial's family, and that bears testimony to the permanent nature of the publication.
The law
The distinction between libel and slander admits of no easy answer although I am of the view, having regard to the circumstances of this case, that it is not necessary for me to determine that issue in its entirety.
Duncan and Neill, Defamation, para. 3.01 highlights the difficulties encountered in resolving this issue:
“English law provides two separate civil actions in respect of the publication of defamatory matter: the action of libel and the action of slander. In general terms, the action of libel is concerned with the publication of defamatory mater which is in writing or some other permanent form whereas the action of slander is concerned with the publication of defamatory matter by word of mouth or in some other transient form; but the precise dividing line between the two types of action is not finally settled. It is difficult to justify the distinction between libel and slander on any logical grounds. The Faulks Committee have recommended in their report that the distinction between libel and slander in civil proceedings should be abolished and that slander should be assimilated to libel for the purpose of such proceedings.”
Gatley on Libel and Slander, 10 th edn. at para, 3. 6 defines both:
“Libel is committed when defamatory matter is published in a ' permanent' form or in a form which is deemed to be permanent. Defamation published by spoken word or in some other transitory form is slander.” [ Emphasis Added .]
Halsbury Laws of England, Vol. 28 4 th edn. Libel and Slander at paras. 11and 12 defines actionable libel and slander:
"11. Actionable libe l. A libel for which an action will lie is a defamatory statement made or conveyed by written or printed words or in some other permanent form, published of and concerning the plaintiff, to a person other than the plaintiff.
12. Actionable slander. A slander for which an action will lie is a defamatory statement made or conveyed by spoken words, sounds, looks, signs, gestures or in some other non-permanent form, published of and concerning the plaintiff, to a person other than the plaintiff, by which the plaintiff has suffered actual damage, often referred to as special damage, which he must allege and prove, or which is actionable per se.”
It would therefore seem that in distinguishing libel and slander one of the tests to be applied is to consider the mode of publication. Publication of defamatory matter in a permanent form would be libel. Having regard to the facts and circumstances of this case, I am of the view that the application of that test would be sufficient for me to hold that, if defamatory, the television broadcast would amount to a libel.
In the instant case it is clear that this was not a spontaneous live television broadcast. Rather it was a television documentary on the life of Dr. Bal Ramdial, put together by the Second Defendant after interviews with the speakers depicted therein. Further, on the pleadings, in response to the allegation by the Plaintiff that the said programme was disseminated as a video programme by the First Defendant to members of the public including the family of the late Dr. Ramdial, the First Defendant admitted that copies of the recorded programme were given to members of the family of Dr. Bal Ramdial. No doubt copies of these videotapes would occupy a significant place in the family archives and would be available for viewing by descendants of Bal Ramdial for at least generations to come. In that regard it is similar to the sale of a book where there is a presumption of publication to a third person. See Gatley ibid para 3.8 and footnote 79; Duncan and Neil ibid. para. 8.02 . It is this degree of permanency which leads me to the conclusion that the television broadcast and the publication of the words spoken by the interviewees would, if defamatory, amount to a libel.
I should think, having regard to the remarkable strides in modern technology allowing for the subject matter to be embodied in a permanent form, that actions for television broadcasts which are alleged to be defamatory ought to be framed in libel. Moreover, if Mr. Martineau's submission is correct, it would mean that if several people complain of being defamed in the same television broadcast, the decision whether respective actions should be framed in libel or slander would depend on whether the defamatory imputation is conveyed in the words themselves, or whether it is conveyed in visual form with the words being ancillary, or a combination of both: See Youssoupoff v Metro-Goldwyn-Meyer (1934) 50 TLR 581; Gatley ibid.para.3.8. Prospective litigants ought not to be shut out on such fine distinctions in this highly technical area. Perhaps the issue could be resolved once and for all by legislation, if necessary.
Meaning
Now what is the meaning of the words complained of? It does not seem to be in dispute that the sting is in the words spoken by the third Defendant :
“I think it is more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial and the way I heard it was that Bal Ramdial was Mr. Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior so that when he was given political power he thought it best that he would use his power to deal with Dr. Ramdial.”
The Court should give to the material complained of the natural and ordinary meaning which they would have conveyed to the ordinary reasonable viewer watching the television programme once in 1993 : Skuse v Granada Television Ltd . (1996) E.M.L.R. 278.
Gatley ibid. para. 3.24 describes the temperament of the ordinary person as follows :
The “ordinary reader” or “ordinary viewer” or “ordinary listener” against whom the court is to judge whether the words have the meanings contended for is something of an abstraction, for among the actual audience of the defamatory publication there will plainly be a great variation in the way the words are understood, but there is only one standard recognised by the law. It therefore follows in the case of a publication in the mass media the claimant may fail even though there is no doubt that as a matter of fact some of the audience (perhaps even a considerable proportion of the audience) will have understood the publication in a defamatory sense. Nevertheless the “ordinary reader” is a little closer to reality than the “reasonable man” of the law of negligence, for the courts are ready to recognize his weaknesses up to a point. He is a sort of half-way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable but he may be guilty of a certain amount of loose thinking and does not read a sensational article with continuous and critical care. The court must be alive to the broad impression created by the publication, rather than indulge in meticulous analysis of what would have been read quite quickly by the public and a first impression may be lasting. The ordinary reader does not construe words as would a lawyer, for he is not inhibited by the rules of construction or of evidence and his capacity for implication or drawing inferences is greater than the lawyer's. 'The lawyer's role is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely, and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.' One should not attribute to him charitable decency but neither is he avid for scandal.”
In determining what impression the material complained of would have been likely to have on the hypothetical reasonable viewer, I am entitled (if not bound) to have regard to the impression it made on me: Gillick v B.B.C. (1996) E.M.L.R. 267 at 273; Gatley ibid. para. 3.24.
In the instant case, the subject matter was a television programme entitled “ Seasons- The Bal Ramdial Story ” which purported to deal with the life of Bal Ramdial and his legacy. It dealt with the monumental contribution made by him to his lifelong passion, forestry and the environment. It dubbed him the Father of Conservation in Trinidad and Tobago. It highlighted the tumultuous period in his illustrious career beginning in 1987 and continuing with his removal as Conservator of Forests in 1989, during which time certain allegations with respect to missing guns, corruption and nepotism were levelled against him. The said period coincided with the removal of the PNM in December 1986 and the advent of the NAR and the appointment of the Plaintiff as Parliamentary Secretary in the Ministry of Forestry and the Environment on 16 th December, 1986.
As I indicated, the sting is really in the words spoken by the Third Defendant. The Third Defendant stated that he thought that it was more or less agreed that the Plaintiff was the one who drummed up these charges. From the context in which the words were published, the charges would be missing guns, corruption and nepotism. And then the Third Defendant went on to ascribe the reasons for the drumming up of the charges. The Third Defendant went on to say that the way he heard it, Bal Ramdial was the Plaintiff's boss at the time and the Plaintiff did not like Bal Ramdial being his senior so that when the Plaintiff was given political power, he thought it best that he would use his power to deal with Bal Ramdial.
The Plaintiff at paras. 5 and 6 of the Statement of Claim pleaded the defamatory meanings relied on. The Defendants submitted that the words spoken do not bear the meanings alleged in the Statement of Claim or any other defamatory meaning. I remind myself that the defamatory meanings pleaded by the Plaintiff are to be treated as the most injurious meanings the words are capable of bearing, so that the questions I should ask myself are, firstly, is the natural and ordinary meaning of the words that which is alleged in the statement of claim and, secondly, if not what (if any) less injurious defamatory meaning do they bear.
I do not think the ordinary viewer would have failed to notice that the Third Defendant used the expression “drum up” in relation to these charges. In the context I do not think that the ordinary viewer in Trinidad and Tobago would equate “drum up” with “trump up”, which would suggest fabrication. As was said by Lord Blackburn in Capital and Counties Bank v George Henty & Sons (1882) A.C. 741 at 786
“…it is unreasonable that where there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document ….”
Collins Concise Dictionary , Revised Third Edition (1995) defines the verb “drum up”:
“To obtain (support, business, etc.) by solicitation or canvassing.”
The New Oxford Dictionary of English in putting a meaning on "drum up" states:
“ drum something up attempt to obtain something by canvassing or soliciting:
The organizers are hoping to drum up support for local businesses.”
The Cambridge Advanced Learner's Dictionary defines the phrasal verb to “drum something up” as “to increase interest in something or support for something : He was trying to drum up some enthusiasm for the project.”
Interestingly the Cambridge International Dictionary of Idioms defines: “bang/ beat the drum” as follows:
“To speak eagerly about something that you support.
Once again she is banging the drum for pre-school nurseries
( often + for)
The opposition parties are always beating the environmental drum.”
It is clear that the Plaintiff on the pleadings equated drumming up with the dictionary meanings of canvassing or soliciting, but I am of the view that the meanings pleaded are too wide. I am of the view that the ordinary viewer watching this television programme once in 1993 would understand the Third Defendant to be saying that he thought it was more or less agreed that it was the Plaintiff who caused interest in those charges of missing guns, corruption and nepotism to be increased, and the reason for that is that at one time Bal Ramdial was the Plaintiff's boss and the Plaintiff disliked that, so that when the Plaintiff was given political power, he abused that power to deal with Bal Ramdial. Clearly an abuse of political power to increase interest in charges of this nature is defamatory
Having arrived at the meaning of the words and bearing in mind that the Defendants have not sought to rely on the plea of justification, I must now go on to consider whether the words complained of are comment or fact, bearing in mind that the defence of fair comment is concerned with the protection of comment, not imputations of fact.
Comment or Fact
During the course of the submissions on fair comment, Mr. Marcus contended that the impugned statements were statements of fact. Mr. Martineau submitted that they were comment.
Gatley ibid. para. 12.7 makes the point that if "a defamatory allegation is to be defended as fair comment it must be recognizable by the ordinary, reasonable reader as comment and the key to this is whether it is supported by facts stated or indicated upon which, as comment, it may be based. To write of someone that he is "a disgrace to human nature" is a defamatory allegation of fact. But if the words were, "He murdered his father, and therefore is a disgrace to human nature," the latter words appear from the context to be merely comment."
In Christie v Robertson (1889) 19, N.S.W.L.R. 157 at 161 Windeyer J. provided the rationale for this approach:
"[To] state accurately what a man has done, and then to say that such conduct is dishonourable or disgraceful, is comment which may do no harm, as everyone can judge for himself whether the opinion expressed is well-founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging himself of the character of the conduct condemned, nothing but a false picture being presented for judgment."
It seems to me that the very nature of a television programme featuring someone of prominence, in this case highlighting the life of a person who has made an invaluable contribution to forestry and the environment would be perceived by the ordinary viewer as having a subjective slant or bias.
The fifth segment “ Weathering the storm ” begins by stating that in 1987 came the shock, with charges of corruption, holding guns and nepotism being levelled against Bal Ramdial. It then went on to set out that within the first week of the new government (NAR) coming into power, he was interrogated by certain people. Following upon this are the words spoken by the Third Defendant. Then you have the statement by Frank Rampersad that nothing was proven, he was clean, they gave up in frustration because they couldn't find anything to pin on him.
The sting complained of is really in the words uttered by the Third Defendant in the fifth segment :
“I think it was more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial and the way I heard it was that Bal Ramdial was Mr. Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior so that when he was given political power he thought it best that he would use his power to deal with Dr. Ramdial.”
The said words uttered by the Third Defendant are not simply qualified by the words “I think,” but are further qualified by the words “it was more or less agreed.” But that by itself is not decisive of the issue. In its context the words “I think it was more or less agreed” would certainly leave the ordinary viewer with the impression that what was being expressed was merely an opinion. The ordinary viewer would more than likely be entitled to say that that was only the view of the speaker or, at the highest, a majority view and that did not represent his view.
Moreover in its context, the statement by the Third Defendant was an expression of opinion because the ordinary viewer would conclude that the statement in question was an inference drawn by the Third Defendant from the facts indicated or referred to in the television programme.
It is also noteworthy that the Third Defendant stated that “the way I heard it was that Bal Ramdial was Mr.Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior.” That would necessarily involve a great deal of subjectivity since it would involve getting into the Plaintiff's mind and drawing an inference from the facts. It would plainly be a matter of opinion whether the Plaintiff did not like Bal Ramdial being his senior. Much the same remark could be made about the Third Defendant's further statement “so that when he was given political power he thought it best that he would use his power to deal with Dr. Ramdial.” However as far as the defence of fair comment is concerned, the Defendants would have to establish that there was a sufficient factual basis for the statements made.
I therefore hold that the words complained of are comment.
Fair Comment on a matter of public interest
It is essential to the proper functioning of the parliamentary democracy of Trinidad and Tobago that great latitude be given to its citizens to participate in the democratic process by expressing their sincerely held views on all matters of public interest. “The right of fair comment is one of the fundamental rights of free speech and writing …. and it is of vital importance to the rule of law on which we depend for our personal freedom.” See Lyon v Daily Telegraph Ltd [1943] 1KB 746 at 753 per Scott L.J.
As way back as 1863 Cockburn C.J. in Campbell v Spottiswoode 3 B.& S. 767, at 777 recognised the need for striking some balance between freedom of expression and the right to protection of reputation:
“It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me the public have an equal interest in the maintenance of the public character of public men, and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation.”
In Silkin v Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743, at pp 746 and 747 Diplock J. formulated his classic statement on the law with respect to fair comment, but again emphasising the balance to be struck between freedom of speech and protection of reputation:
“Let us look a little more closely at the way in which the law balances the rights of the public man, on the one hand, and the rights of the public, on the other, in matters of freedom of speech. In the first place, every man, whether he is in public life or not, is entitled not to have lies told about him and by that is meant one is not entitled to make statements of fact about a person which are untrue and which redound to his discredit, that is to say, tend to lower him in the estimation of right-thinking men.
What are the limits of the right of comment? Quite rightly they are very wide. First of all, who is entitled to comment? The answer to that is 'everyone.' A newspaper reporter or a newspaper editor has exactly the same rights, neither more nor less, than every other citizen, and the test is no different whether the comment appears in a Sunday newspaper with an enormous circulation, or in a letter from a private person to a friend or, subject to some technical difficulties with which you need not be concerned, is said to an acquaintance in a train or in a public house. So in deciding whether this was fair comment or not, you dismiss from your minds the fact that it was published in a newspaper, and you will not, I am sure, be influenced in any way by any prejudice you may have for or against newspapers any more than you will be influenced in any way by any prejudice which you may have for or against Lord Silkin's politics….
I have been referring and Counsel in their speech to you have been referring to fair comment, because that is the technical name which is given to this defence, or, as I would prefer to say, which is given to the right of every citizen to comment on matters of public interest. But the expression 'fair comment' is a little misleading. It may give you the impression that you, the jury, have to decide whether you agree with the comment, whether you think it is fair. If that were the question you had to decide, you realise that the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate or prejudiced, provided - and this is the important thing - that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?”
In Basdeo Panday v. Kenneth Gordon P.C.A. No.35 of 2004, Lord Nicholls of Birkenhead at paragraph 12 reminded us of the purpose of the law of defamation, which was to strike a balance between freedom of speech and the right to reputation, and placed the defence of fair comment in its proper context:
“The purpose of the law of defamation is to hold a balance between freedom of speech and the right to reputation. The basic position at which the common law holds this balance is to impose strict liability for defamatory statements in the absence of justification. The common law departs from this position where the words complained of are an expression of honest comment, as distinct from a statement of fact on matters of public interest. This defence of honest comment is available even if the comment was made to injure, as where a politician seeks to damage his political opponent: See Cheng v. Tse Wai Chun [2000] HKCFA 35; [2000] 3 HKLRD 418 and Branson v. Bower [2001] EWHC 460; [2002] Q.B. 737.”
In yet another of his seminal judgments in the law of libel, Lord Nicholls in Cheng sought to clarify the law on the meaning of malice in the context of the defence of fair comment. In Cheng it was held that:
(1) The ingredients of the defence of fair comment were five-fold:
i) The comment must be on a matter of public interest. Public interest was not to be confined within narrow limits.
ii) The comment must be recognisable as comment, as distinct from an imputation of fact.
iii) The comment must be based on facts which were true or protected by privilege.
iv) The comment must explicitly or implicitly indicate, at least in general terms, what were the facts on which the comment was being made. The reader or hearer should be in a position to judge for himself how far the comment was well-founded.
(v) The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. Furthermore it must be germane to the subject-matter criticized. But a critic need not be mealy-mouthed in denouncing what he disagreed with: he was entitled to dip his pen in gall for the purpose of legitimate criticism.
2. The defence of fair comment could be rebutted by proof that the defendant was actuated by malice. Malice was subjective rather than objective. It covered the case of the defendant who did not genuinely hold the view he expressed. Thus if the defendant knew that his comments were untrue, or was recklessly indifferent to the truth or falsity of his comments, that would constitute malice.
3. Honesty of belief was the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it might be, even if it was the sole or dominant motive, did not of itself defeat the defence. Proof of such motivation, however, might be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed could be inferred.
Lord Nicholls at para. 21 referred to the five-fold ingredients of the defence as being the outer limits of the defence and held that the burden of establishing that a comment falls within these limits, and therefore within the scope of the defence, lies upon the defendant who wishes to rely on the defence.
Lord Nicholls then immediately went on at para. 22 to make the point that even after a defendant has established that a comment falls within those limits, the defence of fair comment could be rebutted by proof that the defendant was actuated by malice.
" Malice
That is not the end of the matter. Even when a defendant has brought his case within these limits, he will not necessarily succeed . The Plaintiff may still defeat ("rebut") the defence by proving that when he made his comment, the defendant was in the time-hallowed expression, "actuated by malice." [ Emphasis added .]
Lord Nicholls emphasized that honesty of belief was the touchstone . The first limb of the defence, the objective limb , was concerned with whether any person, however prejudiced or obstinate, could honestly hold the view expressed by the defendant. As this is to be judged objectively, it is unnecessary for the defendant to state in evidence that he did indeed hold the opinion stated. In a clear case the judge can rule, without hearing evidence, that the comment must be considered as fair: Gatley ibid . para. 33.21 . So the fact that the opinion expressed is exaggerated, obstinate, prejudiced or even wrong is not a bar to the defence succeeding. The vagrant in Woodford Square is entitled as much as the social scientist to protection for his honestly held opinions on a matter of public interest.
Gatley ibid . goes on to make the point that where malice is alleged it will usually be essential for the defendant to give evidence to rebut this charge. Since honesty of belief is the critical factor, the defendant's evidence will be required to establish this or rebut the allegation that the opinion he expressed was not one genuinely held by him. It will therefore be for the claimant to allege and prove malice . As Lord Nicholls states at para. 24 ibid:
"……. malice covers the case of the defendant who does not genuinely hold the view he expressed. In other words, when making the defamatory comment the defendant acted dishonestly. He put forward as his view something which, in truth, was not his view. It was a pretence. The law does not protect such statements. Within the objective limits mentioned above, the law protects the freedom to express opinions, not vituperative make-believe."
It will be necessary at this stage to set out the relevant sections of the Constitution.
"2. This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency.
3. (1). In this Constitution -
"law" includes any enactment, and any Act or statutory instrument of the United Kingdom that before the commencement of this Constitution had effect as part of the law of Trinidad and Tobago, having the force of law and any unwritten rule of law."
4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely -
(c) the right of the individual to respect for his private and family life;
(e) the right to join political parties and to express political views;
(f) freedom of thought and expression;
(h) freedom of the press.
5. (1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.
6. (1) Nothing in sections 4 and 5 shall invalidate:-
(a) an existing law;
…………………….
(3) In this section -
"existing law" means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution, and includes any enactment referred to in subsection (1);
13 (1) An act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
55. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Senate and those of Representatives, there shall be freedom of speech in the Senate and House of Representatives.
(2)No civil or criminal proceedings may be instituted against any member of either House for words spoken before, or written in a report to, the House of which he is a member or in which he has a right of audience under section 62 or a committee thereof or any joint committee or meeting of the Senate and House of Representatives or by reason of any matter or thing brought by him therein by petition, bill, resolution, motion or otherwise, or for the publication by or under the authority of either House of any report, paper, notes or proceedings."
The Preamble to our Constitution makes clear that the Republic of Trinidad and Tobago was founded upon principles that acknowledged, inter alia, faith in fundamental human rights and freedoms. In that regard provision was made for ensuring the protection of the rights and freedoms which underpinned our society by entrenching same into our Constitution. So far as is relevant for the purposes of this case, section 4 of the Constitution recognizes and declares the continuation of the already existing fundamental rights and freedoms namely, the right of the individual to respect for his private and family life [s.4(c)], the right to join political parties and to express political views [s.4(e)], the right to freedom of thought and expression [s.4(f)], and the right to freedom of the press [s.4(h)].
As is immediately apparent, the framers of the Constitution have gone to great lengths in ensuring that the greatest amplitude is given to the people of Trinidad and Tobago to voice their opinions on the public affairs of their country, to participate in the democratic process and to engage in political debate by including as separate and fundamental rights, separate and apart from the freedom of thought and expression provision, the right to join political parties and the right to express political views, and freedom of the press. But the Constitution also makes sacrosanct the fundamental right of the individual to respect for his private and family life. And by virtue of the existing law provision (s.6), the common law right to the protection of one's reputation is preserved as "Nothing in sections 4 and 5 shall invalidate an existing law." In considering the proper balance to be struck between freedom of expression and the protection of one's reputation, it seems to me that the existing law of defamation should take into consideration constitutional provisions which call for a greater degree of tolerance for freedom of speech, but at the same time should not sacrifice a person's reputation under the guise of freedom. Clearly what was contemplated by the framers was not absolute freedom, but constitutional freedom. The function of the courts in a constitutional democracy is to resolve the tensions that exist between the competing constitutional provisions in a principled and rational way. In Panday Lord Nicholls stated at para 22:
"The general format of section 4 is to list rights, such as 'freedom of the press', briefly and without elaboration. Plainly the intention was that the courts should work out the practical detail. The content of the rights was a matter for the judges. Necessarily so, not least because some of the listed rights may sometimes be in conflict with each other. As noted by Cory J in the Supreme Court of Canada, publication of defamatory statements 'constitutes an invasion of the individual's personal privacy and is an affront to that person's dignity': Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129, 164, para 121. Thus freedom of expression and the right to respect for private life, both of which are listed without qualification in section 4, may sometimes collide. The Constitution does not attempt to resolve problems of this kind. These are matters left to the judges. It is for the courts to decide, in a principled and rational way, how the fundamental rights and freedoms listed in the Constitution are to be applied in the multitude of different sets of circumstances which arise in practice. It is for the courts to decide what is the extent of the protection afforded by these constitutional guarantees."
I am therefore of the view that a broad and liberal approach should be adopted when dealing with the defence of fair comment. But it should not be seen as providing a licence for dishonest character assassination. “In a society which greatly values the freedom of speech and safeguards it by a constitutional guarantee, it is right that the courts when considering and developing the common law should not adopt a narrow approach to the defence of fair comment. See Eastern Express Publisher Ltd. v Mo Man Ching [1999] HKCFA 61; (1999) 2 H.K.C.F.A.R. 264 at 278. The courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour”: C heng ibid para.3 per Li C.J.
In Cheng Lord Nicholls expressed the view at para. 41 that the purpose for which the defence of fair comment existed was to facilitate freedom of expression by commenting on matters of public interest and that this accorded with the constitutional guarantee of freedom of expression. Paragraph 41 states:
"…...Before turning to the authorities I shall go back to first principles. Proof of malice is the means whereby a plaintiff can defeat a defence of fair comment where a defendant is abusing the defence. Abuse consists of using the defence for a purpose other than that for which it exists. The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting on matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree."
Lord Nicholls also opined at para. 46 that the objective safeguards, coupled with a subjective safeguard, would ensure that the greatest latitude is given to freedom of expression while at the same time providing the requisite measure of protection for a person's reputation:
“The objective safeguards, coupled with the need to have a genuine belief in what is said, are adequate to keep the ambit of permissible comment within reasonable bounds.”
The point has already been made that a broad and liberal approach should be adopted when dealing with the defence of fair comment , but that cannot provide a licence for dishonest character assassination . The liberality of the defence is warranted having regard to the highly subjective nature of expressions of opinion. Thus readers can make up their own minds as to whether they agree with the views put forward or not. The European courts also favour such a broad and liberal approach when dealing with comment on a matter of public interest and value judgments, as to hold otherwise would amount to a significant inhibition on freedom of speech. In Jerusalem v Australia (2003) 37 E. H. R. R, 25, at paras.32, 42 and 43 the European Court of Human Rights reiterated its approach:
"[32]According to the Court's well-established case law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for individual self-fulfilment. Subject to para. 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
……………….
[42] In this respect the Court recalls that in the case of Lingens v Austria (No. 1) (1995) 19 E.H.H.R. 389, para 63, the Court has distinguished between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10
[43] However, the Court further recalls that, even where a statement amounts to a value judgment , the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without a factual basis to support it may be excessive
De Haes and Gijsels v Belgium [1997] ECHR 7; (1998) 25 E.H.R. R. 1 para 47, and Oberschlick v Austria (No. 2) (1998) 25 E.H. R.R. 375, para. 33.”[ Emphasis Added ]
Interestingly enough, the Strasbourg Court saw no need to distinguish between political discussion and discussion on matters of public interest. In Thorgeir Thorgeirson v Iceland [1992] ECHR 51; (1992) 14 E.H.R.R. 843, para. 64 the European Court of Human Rights stated:
“On the questions of general principle raised by the Government, the Court observes that there is no warrant in its case-law for distinguishing, in the manner suggested by the Government, between political discussion and discussion of other matters of public concern.”
I have already found that the words complained of are comment, with the ordinary viewer probably saying that the Third Defendant was expressing an opinion formed by the majority of people, which said opinion did not necessarily coincide with his. "A defendant should not be required to justify value judgments or opinions expressed on matters of public interest as though they were matters of objectively verifiable fact": per Eady J in Branson v Bower [2001] EWHC 460; [2002] QB 737 at 740.
The Law on Sufficient Factual basis
Notwithstanding my holding that the Third Defendant was expressing an opinion, the Defendants are not home and dry, for there must be a sufficient factual basis for the opinion expressed. See Jerusalem v Austria ibid para 43.
In Kemsley v. Foot [1952] 1 All E.R.501 the House of Lords held that if there was a substratum of fact stated or indicated in the words complained of which was sufficient to form a basis for the comment, it was unnecessary for all the facts on which the comment was based to be stated in order to admit the defence of fair comment. So that it is not strictly necessary for the facts on which the comment is based to be set out in the publication. It may be contained in the particulars . At page 506 B - E Lord Porter stated:
"In a case where the facts are fully set out in the alleged libel each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principles apply where the alleged facts are found, not in the alleged libel but in particulars delivered in the course of the action ? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it was published can read them and may regard them as facts derogatory of the plaintiff, but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject-matter of comment, but facts alleged to justify that comment . In the present case, for instance, the substratum of fact on which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that the Press is a low one. As I hold, any facts sufficient to justify that comment would entitle the respondents to succeed on a plea of fair comment . Twenty facts might be given in the particulars and only one justified, yet if that one fact was sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not necessarily defeat the respondents' plea. The protection of the defendant in such a case would, in my opinion, be, as it often is in cases of the like kind, the effect which an allegation of a number of facts which cannot be substantiated would have on the minds of a jury who would be unlikely to believe that the comment was made on the one fact or was honestly founded on it, and, accordingly would find it unfair."
To require a commentator to set out in full the facts upon which his comment is based would be unrealistic and would have the chilling effect of inhibiting discussion on matters of public interest. In Tse Wai Chun Paul v. Albert Cheng ibid at para.19. Lord Nicholls stated that “the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.”
Eady J in Branson v Bower ibid. at para. 30, relying on Kemsley v. Foot and Cheng was of the view that when applying the objective test in cases of fair comment, it was necessary for the judge to decide whether the hypothetical person would honestly express the commentator's views on the assumption that he knows (a) facts accurately stated in the article, (b) facts referred to in the article and (c) facts that are so well known that they may be described as general knowledge.
Comment on facts which are true or protected by privilege
Again I remind myself that in considering whether the opinion could have been held by an honest person, opinions can be based not only on facts which are true, but also on facts which are protected by privilege: Tse Wai Chun Paul v Cheng ibid. para. 18. Gatley ibid. para. 12 -- 20 . In my view to restrict comment on privileged statements would have the effect of crippling public discussion on matters of public concern.
In the instant case the letters pleaded at para. 9 (xviii) and (xxxii) of the Defence referred to correspondence passing between Bal Ramdial and the Public Services Commission in which he sought to set out the injustices which he alleged he had suffered at the hands of, among others, the Plaintiff during the course of his employment. Bal Ramdial was a public officer and the matters concerned his public functions. The Public Services Commission is charged with the responsibility under the Constitution for, among other matters, disciplining and promoting public officers. Clearly in those circumstances the parties have a common interest thereby making the correspondence privileged. See Gatley ibid. para. 14.43.
Where comment is made upon facts and matters protected by privilege, the defence will succeed even where those facts and matters are untrue. However the comment must be made on a fair and accurate account of them if the defence is to succeed: Brent Walker Group plc v Time Out ltd. (1981) 2 QB 33.
In the instant case it should be noted that the Defendants were not only relying on the correspondence that enjoyed qualified privilege, but on other correspondence as well as discussions with Bal Ramdial. I also note that there is a certain degree of overlap with the correspondence under the hand of Bal Ramdial, since all of those were the subject of an Order 38 Notice, thereby leaving it to the Court to determine the weight to be attached to them.
Again the comment which is at the very heart of this action is:
"I think it is more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial and the way I heard it was that Bal Ramdial was Mr. Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior so that when he was given political power he thought it best that he would use his power to deal with Dr. Ramdial."
In determining whether there was a sufficient factual basis, I should make the point that in the course of analysing the evidence, I had also made certain findings, some of which would be relevant to this issue.
In the instant case the subject matter was a television programme entitled "Seasons - The Bal Ramdial Story." The programme dealt with Bal Ramdial's life and the enormous contribution made by him to forestry and the environment. It included statements by prominent people in the society, many of whom shared the view that he was, at the very least, unfairly treated. However it also dealt with certain charges of corruption, guns and nepotism levelled against him while he was Conservator of Forests. The impugned statements in this matter related to the conduct of the Plaintiff while occupying public office as an elected Member of Parliament and more particularly, as the Parliamentary Secretary.
There is no dispute that the Second Defendant was at all material times employed and/or engaged by the First Defendant and was the producer and narrator of the said television programme. The said programme was recorded after the Second Defendant had attended a function held to honour the late Bal Ramdial. At the said function, people spoke on different aspects of Bal Ramdial's life. The Third Defendant spoke of Bal Ramdial's childhood days. This function took place about a month or two before the Third Defendant was interviewed.
At that said function, the Second Defendant approached the Third Defendant to do an interview. She subsequently contacted him and told him that she would like to put the different people who spoke of Bal Ramdial on film. The Third Defendant agreed and eventually went to the television station and did the interview. The said interview took place around July 1993, with the Second Defendant as interviewer. None of the other persons who were interviewed on the said programme were present at the television station at that time, nor was he shown any footage of the other interviewees. At the said interview he remembered the Second Defendant saying:
"In 1984 Dr. Ramdial left for Geneva for a three (3) year position as Director of a highly coveted forestry programme at the United Nations. In 1987 came the shock - back at home, charges of corruption, holding guns, nepotism."
And as part of the interview he recalled saying the words:
"I think it was more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial and the way I heard it was that Bal Ramdial was Mr. Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior so that when he was given political power he thought it best that he would use his power to deal with Dr. Ramdial."
In cross-examination, he said he could not recall specifically the question that the Second Defendant asked him, but it dealt with harassment, accusation of guns and ammunition and nepotism raised against Bal Ramdial. In re-examination the third Defendant went on to add corruption.
The Third Defendant went on to testify that up to the time that he gave that interview, he had no dealings with the Plaintiff professionally or otherwise, nor did he harbour any ill-feelings against him. The Third Defendant testified that the interview lasted approximately 30 to 45 minutes. It was not a question and answer type interview as he spoke 99% of the time. He thinks that that was the only question that the Second Defendant asked him. He also spoke about Bal Ramdial's childhood days.
As is clear from the television programme, all of the persons who spoke on same were either related to or seemed to be familiar with Bal Ramdial. More than that, many of the interviewees were prominent people who themselves enjoyed a great deal of public respectability. For example, both Frank Rampersad and Frank Barsotti were Economists and former Permanent Secretaries who had served the country with distinction in the post-Independence era. Overand Padmore was, among other things, a Minister of Agriculture in the PNM administration. Dr Vijay Narayansingh is a highly respected vascular surgeon and Ken Gordon is a media magnate. So that the interviewees on the said programme were not mere busybodies, but included distinguished citizens who seemed not only familiar with Bal Ramdial's achievements, but could be regarded as persons who would act responsibly in making public utterances. It must also be borne in mind that the issues of the holding of guns, corruption and nepotism were all matters which had been placed in the public domain.
The Third Defendant himself was not simply Bal Ramdial's first cousin, but quite significantly, was a Chartered Accountant and, as I accept, Bal Ramdial's confidant and adviser. The Third Defendant was subjected to a thorough cross-examination by Mr. Marcus. Having seen and heard the Third Defendant, I have concluded that the Third Defendant has left me with the general impression that he is a witness of truth, and had an intimate knowledge of the matters referred to in his testimony.
The television programme attempted to deal with the life of Bal Ramdial, from birth to death, and his legacy. It dubbed him the Father of Conservation. It also highlighted some of the difficulties he encountered in forestry, including a tumultuous and eventful period while the Plaintiff was a Parliamentary Secretary in the Ministry of Agriculture.
The impugned section of the television programme referred to charges of corruption, holding guns and nepotism being levelled against him. It referred to him being interrogated the first week the new government (" NAR") coming into power, and people with whom he worked not even saying a word in his favour.
Then came the statement of the Third Defendant, that he thought it was more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial, and the way that he heard it, was that Bal Ramdial was Mr. Shand's boss and Mr. Shand did not like Bal Ramdial being his senior, so that when Mr. Shand was given political power, he thought it best that he would use his power to deal with Bal Ramdial.
Frank Rampersad then went on to state that nothing was proven, Bal Ramdial was clean, and that they gave up in frustration because they couldn't find anything to pin on him, but that he (Bal Ramdial) was subjected to intense harassment, and he was satisfied that that adversely and severely affected Bal Ramdial's health. Frank Rampersad went on to suggest that as a result, immediately after that, Bal Ramdial suffered his first heart attack, and he was satisfied that this rather unfortunate period of his life greatly shortened his life and prevented the fulfilment of his life's work.
The Third Defendant on the said programme stated that none of Bal Ramdial's critics, including the Plaintiff and Professor Kenny wanted to comment on camera. Once Bal Ramdial was removed as Conservator of Forests in 1989, he continued environmental work as dean of NIHERST.
Dr Vijay Narayansingh stated that if we sweep aside our most talented, devoted and loyal people with just an administrator's stroke of the pen, what that does is that it impoverishes our country.
The Second Defendant introduced the fifth segment with the charges commented on by the Third Defendant. As was stated by the Second Defendant, "In 1987 came the shock, back at home charges of corruption, holding guns, nepotism." Almost immediately after that, the Third Defendant then goes on to make the statement including, "I think it was more or less agreed that Mr. Shand is the one who drum up these charges against Bal Ramdial..."
It is clear therefore that the charges referred to in the said television programme by the Third Defendant related to charges of corruption, holding guns and nepotism. The transcript also makes reference to Bal Ramdial being interrogated by certain people the very first week the new Government (" NAR") came into power, and people with whom he worked not saying anything in his favour. It also referred to Bal Ramdial being the Plaintiff's boss at one point in time and that the Plaintiff did not like Bal Ramdial being his boss. It also referred to Bal Ramdial being clean, that nothing was proved against him. It also referred to him being subjected to intense harassment, and that that adversely and severely affected his health. It also referred to Bal Ramdial suffering a heart attack immediately after that. It also referred to the Plaintiff himself being a man of considerable experience in Forestry. It also referred to Bal Ramdial's critics, including the Plaintiff and Professor Kenny not wanting to comment on camera. It also referred to his removal as Conservator of Forests in 1989, and the continuation of his environmental work at NIHERST.
In their attempt to establish that there was a sufficient factual basis for the comment made, the Defendant's particulars at para. 9 contained some 32 sub- paragraphs. The Defendants also rely on the contents of the correspondence under the hand of Bal Ramdial which were the subject of an Order 38 Notice. I should indicate that I chose to attach great weight to the contents of the correspondence. I did so on the basis of their contents, their contemporaneity and the support provided by the testimony of the Third Defendant. It is not necessary for me to go through every single document. Sub -paras. (i) to (xiv) deal with the interaction between the Plaintiff and Bal Ramdial in the early years, that is from about September, 1964 to September, 1965, and again from 1975 until 1977. It is not in dispute that Bal Ramdial was at one point in time the Plaintiff's senior.
I have already held that the reasonable inference to be drawn against the backdrop of the contemporaneous documents was that the relationship between the Plaintiff and Bal Ramdial was, euphemistically speaking, far from cordial. It is clear that Bal Ramdial, as the Plaintiff's senior, was very critical of the Plaintiff's performance. It is also clear that the Plaintiff was resentful of this criticism, considering that he was being unfairly treated by Bal Ramdial. The evidence establishes that Bal Ramdial did not recommend the Plaintiff for a salary increase, nor did he recommend that the Plaintiff be made permanent even though there were vacancies and the Permanent Secretary thought that the Plaintiff was suitably qualified. Further the evidence establishes that the Plaintiff did not recommend that the Plaintiff be appointed one of the Ministry of Agriculture's representatives on the Board of Directors of Tanteak. Finally the evidence establishes that Bal Ramdial had, after approving the Plaintiff's vacation leave on April 4, 1977, deferred same the very next day on the basis that the Plaintiff, having been given time to complete his annual report on Utilisation, had submitted an incomplete report. That would provide the factual basis for the Third Defendant's statement, "Bal Ramdial was Mr. Shand's boss at the time and Mr. Shand did not like Bal Ramdial being his senior."
It is also clear when one has regard to the correspondence and to the Plaintiff's testimony, that almost immediately after the NAR formed the new government, a complaint was made against Bal Ramdial by the General Manager of Tanteak that he was frustrating the viability of the company by withholding the supply of raw material to the company. As a result of the said complaint, Bal Ramdial was required to attend a series of meetings. At the said meetings Bal Ramdial, in the presence of junior officers, had to personally defend the charges made against him even though any decision made with respect to Tanteak would have had to be approved by the Board. One of these meetings was chaired by the Plaintiff, as the Minister was absent. At that said meeting the Plaintiff asked Bal Ramdial several questions.
Again one must consider this scenario in the context of the Plaintiff having considerable experience in the field of forestry and having worked in the Forestry Division for some years and being Parliamentary Secretary to a Minister who did not have a background in forestry and/or the environment. Further in Bal Ramdial's correspondence, he also refers to the meetings as "weekly interrogative sessions."
I therefore find as a fact that Bal Ramdial "was interrogated the very first week the government came into power by certain people and people whom he worked with did not even say a word in his favour."
It is appropriate at this stage to note that what was particularly striking with respect to this allegation was that it would resurface in May 1987, but this time with a new twist in that what was also being alleged was that Bal Ramdial was now part and parcel of a conspiracy together with a group of individuals to acquire Tanteak. Yet that was not raised with Bal Ramdial earlier on, nor did that form any part of the State's case when dealing with the judicial review proceedings brought against the Plaintiff or the Minister. One wonders how this metamorphic change came about!
Corruption, Holding Guns, Nepotism
It is undisputed that with respect to Bal Ramdial nothing was proven, he was clean. The Plaintiff himself confirmed that in his testimony.
Holding of Guns
The allegation against Bal Ramdial on this issue also involved an element of corruption. I have already set out that the Plaintiff went on national television on 29 th April 1987 and made reference to a report in his possession which contained a report that revolvers which were supposed to be in the custody of the Conservator of Forests had disappeared. The undisputed evidence is that pursuant to a directive from the Permanent Secretary, Bal Ramdial lodged the firearms and ammunition at the St. Clair Police Station around March 1980 approximately seven (7) years before the statement made by the Plaintiff on national television
The evidence clearly establishes that the relevant information could have been obtained from the records and appropriate personnel, inclusive of Bal Ramdial himself, at the Forestry Division and the Ministry.
On this issue as well as the other thorny issues which surfaced during this tumultuous period, Bal Ramdial wrote several letters to the Permanent Secretary and/or the Chairman of the Public Services Commission complaining, inter alia, about the abuse of political power and the treatment meted out to him from the beginning of 1987, contending that he had been subjected to interrogations, press castigations, investigations and harassment. I accept Bal Ramdial's testimony in this regard.
Nepotism
With respect to the issue of nepotism, the Plaintiff had gone on national television and indicated that in the said report, there were certain areas where they would have to take certain actions so far as accountability was concerned. One of the areas he referred to was the question of Bal Ramdial not chairing the Conservation of Wildlife Committee meetings since 1984. The Plaintiff indicated that an explanation was going to be demanded of Bal Ramdial as he was accountable to the people of Trinidad and Tobago.
Bal Ramdial, in his memorandum dated May 4, 1987 [" C15 "] set out his reasons for not chairing the said Committee. Bal Ramdial indicated he had received a directive from the Permanent Secretary that as one of his blood relatives was involved in Wildlife Management and Conservation, the administration of this part of the Division's functions might be more objectively handled by the Deputy Conservators of Forests. The Third Defendant testified that this blood relative was Bal Ramdial's brother, Bheesham Ramdial.
In these circumstances Bal Ramdial thought it administratively better that all aspects of Wildlife Management including the Chairmanship of the Wildlife Conservation Committee be undertaken by the Deputy Conservator of Forests rather than interpose himself between chairing the Committee and the effective discharge of the decisions of the Committee, as that would provide continuity in the Section's affairs. Bal Ramdial however made himself available to the Deputy Conservator of Forests for consultation on all technical, professional and administrative matters relating to Wildlife Management and Conservation.
Bal Ramdial in that memorandum prefaced his explanation on this issue, as well as the issue with respect to the missing revolvers with the following remark:
" I would like to record and convey to the Parliamentary Secretary, Mr. E. Shand, the relative information pertaining to those two issues which could have been obtained from the records and appropriate personnel at the Forestry Division and the Ministry of Food Production, Marine Exploration, Forestry and the Environment ."
Clearly the Plaintiff in his capacity as Parliamentary Secretary was suggesting that there was some dereliction of duty on the part of Bal Ramdial, or some favouritism shown, because of his brother's involvement in Wildlife Management and Conservation. Again this issue was taking into the public domain by the Plaintiff in his capacity as Parliamentary Secretary, an issue which he thought needed to be responded to by the political directorate . Of course this was an issue that reared its head in 1984, some three years prior to the television broadcast
Corruption
The complaint against Bal Ramdial on the issue of frustrating the viability of the supply of raw material did not end there. Even after he sought to counter the allegations made against him by preparing the said report dated February 25, 1987, (Tanteak, A Retrospective Analysis), contending, inter alia, that the failure of Tanteak to achieve financial viability was not due to the inadequacy of raw material, the issue reared its head once again, this time in Parliament. On 15th May, 1987, in Parliament, the Minister of Agriculture referred to a letter from the General Manager of Tanteak dated 8th January, 1987, alleging that he, the General Manager, was aware of a conspiracy by a clique of individuals to acquire Tanteak and hence gain exclusive concession rights to the teak and pine resources from which they stood to make large profits. The chief means of achieving this acquisition was to stifle and inhibit the progress and viability of Tanteak by constraining its raw material supply. This stifling was allegedly executed by the Conservator of Forests who was also at the time the Chairman of the board of Tanteak.
It is clear therefore that the Minister, enjoying Parliamentary immunity under section 55 of the Constitution, was alleging that Bal Ramdial was part and parcel of this nefarious conspiracy, Bal Ramdial playing his role by stifling the progress and viability of Tanteak by constraining its raw material supply. One of the other parties to this alleged conspiracy was clearly Industrial Sawmilling and Pallet Manufacturing Company Limited ("Industrial Sawmilling Ltd").
As a result of the attempt to implement a new policy by stopping the supply of raw material to Industrial Sawmilling Ltd, the company commenced judicial review proceedings against the Minister of Agriculture and the Plaintiff in his capacity as Parliamentary Secretary challenging their decision. Mr. Justice Blackman delivered his said judgment in the said proceedings, H.C.A. No. 4336 of 1987, on March 17, 1988 and made certain findings. (See pages 32 to 34 ante.).
Mr. Justice Blackman's judgment vindicated Bal Ramdial against all allegations of impropriety or criminality. Implicit in his judgment is a clear abuse of power by the Plaintiff. Moreover the judgment is of assistance in understanding why the Minister and the Parliamentary Secretary acted in the way they did in relation to Bal Ramdial. Here is the evidence with regard to the issue of the change in title from Conservator of Forests to Director of Forestry, and the relocation of Bal Ramdial from his office to an office in the building which housed the Minister and the Parliamentary Secretary.
The Plaintiff in chief indicated that he was aware of the Cabinet Minute of March 3, 1988 authorising the change in title from Conservator of Forests to Director of Forestry. Somewhat disingenuously, the Plaintiff in chief testified that this change in title was an upgrading of the post of Director of Forestry. The Plaintiff admitted that it was the Minister, after discussing it with him, who made the decision to move Bal Ramdial from the Forestry Division at Long Circular Road to where the Minister and the Parliamentary Secretary were at St. Clair. In that regard, he agreed with the Minister's decision that Bal Ramdial should be moved. The reason why the Minister and he felt that Bal Ramdial should be moved was because the Minister, in his attempt to solve the Tanteak raw material supply situation, was of the view that the Conservator of Forests should be removed from that situation. He agreed with the Minister's decision that Bal Ramdial should be brought over to the St. Clair office on special assignment. The Plaintiff was then asked even if Bal Ramdial was being given a special assignment, why was it necessary to move him physically from Long Circular to St. Clair. Amazingly the Plaintiff responded that the physical movement went along with his special assignment. That special assignment was to implement the recommendation to form a National Environmental Authority or something like that.
The Plaintiff admitted that the Conservator of Forests is a very powerful figure in the Forestry Division and has a status which is highly recognised. He also agreed that the Conservator of Forests has certain statutory duties and responsibilities to discharge with which not even the Minister could interfere. The Plaintiff said that the Conservator of Forests remained as Conservator of Forests even though he was given the special assignment. He agreed that the special assignment would have involved the time and dedication of the Conservator of Forests. The Plaintiff was asked whether as a consequence it would eat into his time to properly perform the functions of Conservator and he answered, "Correct."
The Plaintiff could not remember if Bal Ramdial had a secretary or desk when he first went over to St. Clair, nor did he (the Plaintiff) seek to provide Bal Ramdial with a secretary or desk. After extensive cross-examination on this issue, the Plaintiff finally relented. When asked why could Bal Ramdial not be at Long Circular if he still remained Conservator of Forests the Plaintiff said:
"As I said the Minister did not wish him to continue the function of controlling the raw material supply of Tanteak."
Interestingly the cross-examination continued as follows:
"Q: That is the raw forest material?
A: Yes. Timber.
Q: And supply of raw material is the function of the Conservator of Forests?
A: Yes.
Q: So that you and the Minister agreed Bal Ramdial should not carry out his statutory functions in supplying raw materials?
A: Yes.
Q: And you agreed to deal with him in that regard by removing him from Long Circular to St. Clair and putting him on special assignment?
A: I don't accept dealing with him.
Q: What do you prefer?
A: I prefer you to say that the Minister asked the Permanent Secretary to put Bal Ramdial on special assignment in St. Clair so as to isolate him from the function of raw materials supply.
Q With which decision you agreed?
A: Yes.
Q: You and your Minister felt that Bal Ramdial was not fit to perform the functions of the office of Conservator of Forests?
A: Yes."
Surprisingly, the Plaintiff didn't think that by isolating Bal Ramdial from his statutory functions as Conservator of Forests, he was belittling him.
The Plaintiff went on to say that after the change was made in March 1988, he believed that Selwyn Dardaine, whom he believed was Acting Conservator of Forests, would have been carrying out the functions of Conservator of Forests. The Plaintiff denied that all of this was part of a scheme designed to strip Bal Ramdial of the powers which Parliament gave him as Conservator. Yet a short while after, he eventually agreed with the suggestion that the reason why Bal Ramdial ceased being Conservator of Forests and became Director of Forestry was to isolate him from performing his statutory duties in respect of the supply of logs.
The Plaintiff himself admitted that the creation of a supernumerary post for Bal Ramdial was designed to isolate him from carrying out his statutory functions under the various pieces of legislation. The conduct of the Minister and the Parliamentary Secretary in that regard was designed to achieve exactly what Mr. Justice Blackman found they could not do. In that regard the Minister's and the Parliamentary Secretary's conduct could be described as being designed to circumvent the statutory powers granted to the Conservator of Forests by the President. Rather than amend the legislation or resort to some other acceptable mode of implementing the new policy, they arrogated unto themselves the decision-making process by effectively stripping the Conservator of Forests of his statutory powers. That was abuse of power of the most pernicious kind .
Moreover it confirmed what Bal Ramdial had been saying ever since he returned to work in November, 1987 after having suffered a heart attack in May 1987. (See " C5 " and " C7 "). As early as December 9, 1987, in " C5 ", Bal Ramdial stated that the "consequence of the new assignment is that I have been removed from my substantive post of Conservator of Forests against my wishes." The conduct of the Plaintiff and the Minister would also provide a sufficient factual basis for Dr. Narayansingh's statement "If we sweep aside our most talented, our most devoted, our most loyal people with just an administrator's stroke of the pen, what that does is that it impoverishes our country."
Again on the issue of corruption , an investigation was conducted by junior officers in the Ministry with respect to the larceny of two logs allegedly stolen by Bal Ramdial. The investigation revealed no evidence of wrongdoing on the part of Bal Ramdial. Moreover it found that the said logs were bought and paid for by Bal Ramdial and were supplied to the Sai Krishna Home. This was a charitable body that Bal Ramdial was involved with, and which he helped by raising funds to assist the Home in supporting needy children. Bal Ramdial was also involved in assisting in the management of the Home.
For the sake of completeness I also find as a fact that:
(i) In May 1987 Bal Ramdial suffered a heart attack and was sent on leave;
(ii) In July 1987 Price Waterhouse's report identified personality clashes within the Forestry Division and recommended that the Ministry should urgently address the issue;
(iii) Bal Ramdial resumed duties in November 1987 and was instructed by the Plaintiff and the Permanent Secretary of the Ministry to take up a special assignment at the Ministry's headquarters in St. Clair;
(iv) By Cabinet Minute No. 388 dated March 3, 1988, Cabinet agreed to changes in title in the Ministry and the only significant change was that of the Conservator of Forests to Director of Forestry.
(v) In November 1988 Bal Ramdial was instructed to proceed on vacation leave which he did on December 19, 1988, and assumed duties at NIHERST on special assignment.
(vi) On August 10, 1989 by Minute No. 1511, Cabinet agreed to the creation of a supernumerary post of Director of Forestry for the substantive holder of the post of Conservator of Forests. Cabinet further agreed that a new post of Director of Forestry should be created to which the Deputy Conservator of Forests would be proposed for an appointment.
(vii) Bal Ramdial was never restored to his post of Conservator of Forests and continued his work at NIHERST until his death in 1983.
Objective test
The final part of the objective limb of the defence of fair comment is that the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. So could an honest person holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view - could an honest person express the relevant comment on the facts provided by the Defendants? I have no doubt that on the facts, the relevant comment could have been made by an honest viewer.
The evidence establishes the prior bitter relationship between the Plaintiff and his senior, Bal Ramdial . In December, 1986, with a change in Government the Plaintiff became a Member of Parliament and served from December 1986 until December 1991. The Plaintiff was appointed Parliamentary Secretary in the very Ministry in which Bal Ramdial was Conservator of Forests and served as Parliamentary Secretary from 24 th December, 1986 to 1 st July 1988.
Almost immediately upon the Plaintiff assuming public office and continuing for the entire period he occupied same, Bal Ramdial who had hitherto gained national and international recognition for his monumental work on forestry and the environment, even being regarded as the Father of Conservation and Forestry in Trinidad and Tobago, suddenly found himself under intense scrutiny, with accusations of mismanagement, corruption, the holding of guns and nepotism, with the majority of the matters being taken into the public domain.
First and foremost in January 1987 he was called upon in a series of meetings at which the Plaintiff was present, and one of which he chaired, to defend the charge that he was frustrating the availability of Tanteak by restricting the supply of raw material to the company. He was not even shown the document which formed the subject matter of the complainant.
In February 1987 Bal Ramdial prepared a detailed report entitled “Trinidad and Tobago Forests Products Company Ltd.(TANTEAK), A Retrospective Analysis,” seeking to show that Management's contention that the failure of the company to achieve financial viability was due to the inadequacy of raw material was not true.
Between February and May 1987, junior staff conducted an investigation with respect to the larceny of two Samaan logs allegedly stolen by Bal Ramdial. The Assistant Conservator's report of November 18, 1987 cleared Bal Ramdial of the allegation.
With respect to corruption, the missing guns and nepotism, I hold that an honest person could express the opinion that on April 29, 1987 the Plaintiff recklessly went on national television and placed in the public domain baseless allegations against Bal Ramdial with regard to corruption, missing guns, nepotism and mismanagement, allegations which had the potential of besmirching the reputation of Bal Ramdial.
With respect to the missing guns the evidence established that the firearms and ammunition were deposited at the St. Clair Police Station around March, 1980 approximately seven (7) years before the Plaintiff's statement on national television , that all the correspondence confirming same was available in the relevant Ministry and that the relevant information could have been obtained from the appropriate personnel at the Forestry Division and in the Ministry. I think that the ordinary viewer would consider legitimate the very questions posed by Bal Ramdial on this issue in his correspondence of September 19,1989( C7 para(iii) ).
With respect to the issue of nepotism and mismanagement, a similar comment can be made as to the availability of the information. I should indicate that in his testimony, the Plaintiff provided an unsatisfactory explanation for not consulting with Bal Ramdial on this issue. Finally on this issue, the Plaintiff professed to be acting on behalf of the political directorate when he made that statement on national television. The Plaintiff explained that since the person from the television station was in possession of this report containing these allegations and wanted a comment from the political directorate, it was appropriate to comment on it so that all concerned would know that the political directorate was not sitting idly by and ignoring the report. The foundations of our democratic society would be shaken to the core were the courts to prevent honest uninhibited criticism of politicians on matters of public interest. In this regard the European Court of Human Rights emphasized the expansive and generous approach in this area in Lingens v Austria (1986) 8 E.H.H.R 407 at paras. 41 and 42. Much the same comment is applicable to the statement made by Minister Myers in Parliament in May 1987.
"In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's fulfilment. Subject to paragraph 2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter or indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society.'
These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the 'protection of the reputation of others', it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. In this connection, the Court cannot accept the opinion, expressed in the judgment of the Vienna Court of Appeal, to the effect that the task of the press was to impart information, the interpretation of which had to be left primarily to the reader.
Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.
The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others- that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues."
Following on the heels of the plaintiff's statement on national television, was the statement made by Minister Myers in Parliament on May 15, 1987, accusing Bal Ramdial of being involved in a conspiracy to permit a group of individuals to acquire Tanteak and hence gain exclusive concession rights to the country's teak and pine resources from which they would make huge profits. As I indicated earlier the allegation that Bal Ramdial was frustrating the viability of the supply of raw material had undergone a metamorphosis, emerging under the protective banner of Parliamentary immunity as an allegation of conspiracy. Once again this matter was placed in the public domain, but this time enjoying Parliamentary immunity. Again there was no basis for this allegation of conspiracy against Bal Ramdial. This is reinforced by Mr. Justice Blackman's judgment in the Industrial Sawmilling case
In his testimony on this issue, the Plaintiff agreed that he, together with staff at the Ministry, assisted the Minister with respect to the report that was read in Parliament. Again I make the point that the Plaintiff was an experienced forester and that in forestry matters, the Minister consulted him and relied on his advice. In the particular matter concerning Tanteak, the Plaintiff admitted that he had advised the Minister on the matters that were the subject of the inquiry.
After getting a heart attack in May 1987 and returning to work in November 1987, Bal Ramdial was, as the Plaintiff admitted, isolated so as to prevent him from performing his statutory duties as Conservator of Forests.
In the context of the television programme as a whole, it is clear that the Plaintiff was in the forefront with respect to the allegations of holding guns, corruption and nepotism. He recklessly placed in the public domain the allegations with respect to the missing guns and Bal Ramdial not chairing the meetings of the Wildlife Committee. He played an important role in the formulation of the government's policy with respect to Tanteak and assisted the Minister with respect to the Minister's statement in Parliament that Bal Ramdial was part and parcel of a conspiracy to allow Tanteak to be acquired by a clique of individuals. And he assisted the Minister in devising a plan designed to prevent Bal Ramdial from carrying out his statutory duties as Conservator of Forests because he and the Minister felt that Bal Ramdial was not fit to perform the functions of Conservator of Forests. Public officers ought not to be sacrificed on the altar of political expediency because they appear to be impediments in the way of implementing government's official policy.
I should make the point that I am not concerned with whether the Plaintiff or Bal Ramdial was right. I am not called upon to determine whether I agree with the comment made. I am addressing the issue as to whether the comment could have been made by an honest person, however prejudiced he might be, or however exaggerated or obstinate his views.
Having regard to the fact that all the allegations against Bal Ramdial coincided with the appointment of the Plaintiff as Parliamentary Secretary, I hold that the ordinary viewer could honestly express the opinion that it was the Plaintiff who drummed up these charges, in the sense that it was the Plaintiff who caused interest in these charges to be increased, because at an earlier point in time the Plaintiff did not like Bal Ramdial being his senior, so that when the Plaintiff was given political power, he thought it best that he would use his political power to deal with Bal Ramdial. By being in his official capacity in the forefront with respect to these charges against Bal Ramdial, the Plaintiff was in effect beating the drum for the political directorate, he was in effect the catalyst for the promulgation of these charges against Bal Ramdial, and he must be prepared to pay the political price by permitting honest uninhibited criticism of his conduct, criticism which can at times be prejudiced, spiteful, harsh, offensive or shocking.
In the very important case of Sata v Post Newspapers (No. 2) [1995] 2 LRC 61, Ngulube CJ had to consider the limits of fair comment with respect to a plaintiff who was a politician and public official holding a ministerial appointment stated at pages 77 and 78:
" I have given anxious consideration to the rest of this generally defamatory article. The examples of allegedly thoughtless actions are subjects that had been reported in various other newspapers with a national circulation and on the electronic media. The evidence that I heard from the witnesses, including General Chinkuli on the arms cache, together with the documentary exhibits, especially The Times of Zambia and Zambia Daily Mail newspapers, has satisfied me that there was a sufficient substratum of facts on which to base the comments made. The question is not whether I agree with the comments or the conclusions but whether an honest person, however prejudiced, might hold such opinions. Even the disputable conclusions that there was nothing honourable about the plaintiff was prefixed by a list of circumstances and the reader was free to form an independent opinion and to judge if the paper was right or wrong. I am, of course, alive to the contention on the part of the plaintiff that the defendants either did not substantiate the facts or made mistakes. For example, I am aware that the plaintiff has never accepted that he had personally ordered the razing of houses. However, other daily newspapers produced in evidence as exhibits showed that the plaintiff was in the forefront in defending this action by the local council. They also showed that the plaintiff was held accountable in his official capacity as the minister of local government at the time, rather than in his private capacity. That the plaintiff took up the official defence of the razing of houses was also manifest in the 'Face to Face' television programme which was played back to the court during, these proceedings. I am satisfied that, by the time the defendants listed the razing of houses as one of the plaintiff's allegedly thoughtless actions, the public and general readership of newspapers in this country had already been conditioned by previous publications to attach or official blame... " [ Emphasis Added .]
Malice
Malice is subjective rather than objective. The onus is on the Plaintiff to establish malice. The Plaintiff submitted that the Defendants did not genuinely hold the views they expressed, and contended that the particulars listed at para 9 (iv) to (xxxii) of the Defendants' Defence were intended to serve a collateral purpose and/or are in and by themselves evidence of malice. Further the Third Defendant was extensively cross-examined in this matter by Counsel for the Plaintiff with a view to establishing that he did not genuinely hold the view he expressed, in other words, he was only pretending. Having seen and heard the Third Defendant, I am of the view that he genuinely held the view he expressed. The lingering impression the Third Defendant left with me is that he was addressing a matter with which he was intimately familiar.
I accepted his testimony that he was Bal Ramdial's first cousin, confidant and adviser and that Bal Ramdial discussed with him what was happening after the NAR came into power in December 1986. The Third Defendant went on to testify that from January 1987 onwards, and continuing monthly, Bal Ramdial consulted him on the various matters that kept cropping up between himself and the Plaintiff. Bal Ramdial also showed him correspondence which he wanted his advice on, and he advised Bal Ramdial on same. In chief he identified the major correspondence in this case, including the very important correspondence dated December 7, 1987 (" C5 ") and September 19, 1989 (" C7 ").
The Third Defendant testified that Bal Ramdial also told him of the relationship between the Plaintiff and himself. That occurred around the time when Bal Ramdial began showing him all the documents relating to all matters between the Plaintiff and himself going back to the mid-1970's, because it was only at that time that Bal Ramdial felt there was a problem, and that the Plaintiff was using his position to get back at him because of the bad blood that had previously existed between them. The Third Defendant stated that as a result of his discussions with Bal Ramdial, he came to the conclusion that the events as related by Bal Ramdial could not have happened by mere coincidence, as within a view days after the NAR came into power, Bal Ramdial was subjected to interrogations, investigations, press castigations and harassment month after month. He was being investigated by junior officers over the disappearance of missing logs. There were public statements about him with respect to missing guns and ammunition, with respect to his performance as Conservator of Forests and Chairman of Tanteak. The Third Defendant then went on to say that he believed everything that Bal Ramdial told him was true. The Third Defendant testified in great detail as to his knowledge of the charges of holding of guns, nepotism and corruption.
With respect to the charge of corruption, the Third Defendant testified that Bal Ramdial, while he was chairman of Tanteak, was being accused of giving preferential treatment to other purchasers of teak to the detriment of Tanteak. Further that Tanteak's lower profits would result in a lower market value, thereby paving the way for investors who were waiting in the wings to buy Tanteak at a lower value. Bal Ramdial had told him that he was not even given a copy of the report, and was confronted with the report at the very first meeting. The Third Defendant testified that Bal Ramdial told him that what he found strange about this report, was that the same was not raised by the General Manager of Tanteak previously, but was only raised within a view days of the Plaintiff's appointment as Parliamentary Secretary. Bal Ramdial told him that he thought that this report was prompted by the Plaintiff.
The Third Defendant said that what he found strange about all these enquiries at Tanteak was that Bal Ramdial was Conservator of Forests since 1970, he was Chairman of Tanteak some eight years before the Plaintiff was appointed as Parliamentary Secretary, and at no time before that were any accusations levelled against Bal Ramdial.
With respect to the missing guns, he understood that charge to be made by the Plaintiff. The Third Defendant said it was clear to him that this report was very hastily prepared, because the guns that were supposed to be missing were properly accounted for and documented some 8 years prior to this query . He concluded that any person preparing a report like that could not have investigated the facts properly, and therefore the matter should not have been placed in the public domain via a television broadcast.
With respect to the issue of nepotism, the Third Defendant testified that Bal Ramdial showed him document " C15 " in which Bal Ramdial explained his reason for not chairing meetings of the Wildlife Committee, as one of his relatives was involved in Wildlife management. He was of the view that in "C15" Bal Ramdial satisfactorily dealt with the matters raised therein. He came to the conclusion that the matters were raised to embarrass, humiliate and belittle Bal Ramdial, and tarnish his character, integrity and reputation.
The Third Defendant went on to say that documents " C5 " ( 7.12.87 ) and " C7 " ( 19.7.89 ) had an influence on him. With respect to " C5 " the Third Defendant testified that he believed in the truth of what Bal Ramdial stated therein with respect to the complaints between January 1987 and May 1987, as Bal Ramdial had forwarded together with that letter supporting documentation, and he had copied the letter to the Permanent Secretary and to the Head of the Public Service. Additionally the Third Defendant said that he had seen the correspondence with respect to the missing guns and the missing Samaan logs. Also he had had discussions with Bal Ramdial and he saw no reason to doubt the information Bal Ramdial shared with him.
With respect to " C7 " ( 19.9.89 ), the Third Defendant testified as to his familiarity with the issues raised therein. The Third Defendant's attention was drawn to Bal Ramdial's conclusion in " C7 ", that is, that a clear pattern of victimisation had emerged on the basis that:
(a) Falsehoods and counterfeit statements will use ruthlessly to defame and vilify him;
(b) Political harassment was instituted in an unrelentless manner to frustrate, agonise, unsettle and mentally disturbed him;
(c) Political power was used unabashedly to humiliate him through the annulment of the post and title of Conservator of Forests with which the public had associated him.
The Third Defendant testified that document " C7 " had a great effect on the statement that he made in the television interview, together with the chronological order of events, as they all started within weeks of the appointment of the Plaintiff as Parliamentary Secretary. The Third Defendant concluded that based on everything that he had read in " C7 ", based on all the correspondence he had seen, based on the discussions he had with Bal Ramdial, based on Bal Ramdial''s own conduct in submitting all the information together with supporting document documentation to an independent body, based on the fact that Bal Ramdial had held the position of Conservator of Forests since 1970 and was held in very high esteem by his colleagues and by the former political administration, and based on his own personal experience of the manner in which business was conducted, that is, for a person to be in a position for 16 years without any accusations being made of corruption or missing guns, and for these enquiries to be taking place on matters which had happened such a long time before, he agreed with Bal Ramdial's comments that all of these charges were now being drummed up to embarrass and belittle him, and to tarnish his professional integrity and character.
The Third Defendant said that Bal Ramdial also told him that it was the Plaintiff who drummed up these charges. I accept the Third Defendant's evidence in this regard. It is clear from the correspondence that Bal Ramdial referred to the charge with respect to the firearms as being "trumped up." It seems to me that the Third Defendant was acting quite prudently and responsibly by using the expression "drum up" in relation to the charges.
The Third Defendant also went on to testify that he was never aware of any disciplinary action being taken against Bal Ramdial while he was Conservator of Forests. He also went on to testify that before he was interviewed by the Second Defendant, he was aware of the general contents of the Industrial Sawmilling Limited judgment. The Third Defendant also said that he knew that the Plaintiff was asked to participate in the interviews as the Second Defendant told him that she had invited the Plaintiff to participate, but she did not get a definite answer from him as yet.
He also said he believed in the truth of what Bal Ramdial said in the letter of May 4, 1987 dealing with the employment of his brother. The Third Defendant also went on to testify that Bal Ramdial's brother, Bheesham Ramdial, had told him that even though his employment was authorised by Cabinet, the Plaintiff had summoned him to a meeting and, in the presence of others, had questioned him. Bheesham Ramdial also told him that even though he had answered all questions truthfully, a few months later he received a letter terminating his employment.
And finally the Third Defendant said he believed in the truth of what Bal Ramdial had told him because:
(i) he had seen all the correspondence;
(ii) he was Bal Ramdial's first cousin, confidant and adviser;
(iii) Bal Ramdial was awarded the Express Individual of the Year Award a few years earlier;
(iv) Bal Ramdial was held in high esteem by the community and everyone who knew him, including the politicians who had hired him;
(v) he saw no reason why Bal Ramdial would have to fabricate a story to convince him of something false.
I therefore hold that the Plaintiff has failed to establish that the Third Defendant did not genuinely hold the views he expressed.
With respect to the First and Second Defendants, I also hold that on a balance of probabilities, the Plaintiff has failed to establish that they did not genuinely hold the views expressed. I have already dealt with the testimony of the Third Defendant as to how he came to be interviewed on the said programme. And I have already commented on the persons who appeared on the television programme. Clearly the Third Defendant was someone on whom reliance could be placed for the views expressed.
The Plaintiff contended that the particulars listed at para.9 (iv) to (xxxii) were intended to serve a collateral purpose and/or are in and by themselves evidence of malice. However as I have found earlier, para. 9 (iv) to (xxxii) contains enough of a factual base as to make it difficult for me to draw the inference that the First and Second Defendants were actuated by malice. In any event there is no dispute that the Plaintiff himself was given the opportunity by the Second Defendant to be interviewed in connection with the television programme and he declined. That would suggest that the Second Defendant was acting quite responsibly in an effort to ensure that the Plaintiff's side of the story was told. In my view the Plaintiff has failed to establish that the inferences to be drawn from the particulars pleaded are sufficient as to amount to malice against the Defendants.
Conclusion
I therefore hold that the Defendants have succeeded on the basis that the words complained of are fair comment on a matter of public interest. In those circumstances there will be judgment for the Defendants. The Plaintiff's claim against the Defendants is dismissed. Costs of the action are to be paid by the Plaintiff to the Defendants certified fit for Senior Advocate Attorney and Junior Advocate Attorney.
Dated this 20 th . day of December 2005
……………………….
PRAKASH MOOSAI
JUDGE
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