The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

OMAR Archer, Sr, has appealed a Supreme Court judge’s decision to dismiss his motion for constitutional relief concerning a criminal libel charge that was brought against him six years ago.

In April 2015, Archer was accused of publishing defamatory material on his Facebook page about a local reporter. According to court documents, “over the course of several days,” Archer and the female journalist became embroiled in an “acrimonious exchange” on Facebook.

During the disagreement, the woman called Archer a “pathetic turd” and said that a “cockroach could beat him in an election”. She also said his mother may have tried to “induce an abortion which made him retarded instead”. In response, Archer wrote several allegations about the reporter.

After she reported the matter to the police, Archer was arrested and charged with intentional libel. However, in the middle of the proceedings, he argued that the law that he was charged under was unconstitutional and requested the matter be referred to the Supreme Court.

His attorney, Frederick Smith, QC, later filed a motion for constitutional relief, seeking a declaration from the court that the “laying of the charge, prosecution, trial and liability of Archer to conviction and sentence to a fine and/or imprisonment for up to two years for the offence of intentional libel were void, illegal and of no effect,” as they breached his constitutional right to freedom of expression.

Nevertheless, in his judgement Justice Loren Klein dismissed the constitutional challenge after ruling that Section 315(2) of the Penal Code, “though admittedly a prima facie interference with Article 23(1) rights,” could not be considered unconstitutional as it was a “saved law within the meaning of Article 30(1)”.

Archer has since appealed the judge’s decision.

During a virtual hearing before Justices Sir Michael Barnett, Roy Jones and Carolita Bethell yesterday, Mr Smith on behalf of his client, still contended that Section 315(2) “in and of itself” was unconstitutional and should be “stricken”.

He said that if their “frontal challenge and attack” on the law was unsuccessful, then they would argue that the section ought to be “modified to remove the mischief that has afflicted Mr Archer”.

“In summary, his lordship Justice Klein accepted that prima facie, the provision under which Mr Archer was charged under the Penal Code, Section 315(2) was a breach of his Article 23 constitutional rights,” he stated.

“And his decision was that had it not been for Article 30 sub paragraph 1, which immunised laws that existed before 1973 which might be deemed unconstitutional, he would have stricken the section down and would have given the relief sought in the motion to prevent any further prosecution of Mr Archer.”

Mr Smith noted that in his judgement, Justice Klein found that it was “common ground between the parties that criminal libel constituted a prima facie interference with freedom of expression”.

He also noted how Justice Klein referred to a submission by the defendant when he stated: “‘It is not surprising that the defendants would make this concession in light of the centrality of the Worme decision. Their lordships, in Worme, readily concluded in that case that it was ‘common ground that the crime of criminal libel constitutes a hindrance to citizens’ enjoyment of their freedom of expression under section 10(1) of the Grenada Constitution.’”

Mr Smith continued to quote Justice Klein when he said: “And then he says, ‘It is virtually indistinguishable from Article 23 of the Bahamian Constitution but even if it were not common ground between the parties that criminal libel was a prima facie interference with the right of free speech, I would be prepared to hold so.’”

In response, Sir Michael told Mr Smith the judge’s comments seemed to suggest that although he agreed with Mr Smith’s arguments, he was being held bound by the case of Worme and therefore could not grant Archer the relief that he sought. Still, Mr Smith asserted the judge was wrong “in holding that he was bound by Worme”.

“I say that when the court looks at Worme, it was a wholesale challenge to the criminal libel laws, and it had no regard to any particular facts as applied in this case. And the Privy Council in Worme in my recollection, held that there was a valid constitutional role to be played by criminal libel in the scheme of things,” he said.

“And I think in (the case of) Worme especially because of the breadth and the nature of the defenses that were available in Grenada, I would suggest that this should be contrasted with his lordship Justice Klein’s careful findings in respect of the disproportionality of applying 315(2) to the facts in this case.”

Mr Smith insisted The Bahamas was not bound by a Privy Council decision from any other jurisdiction. He also said that nothing in the case of Worme would have prevented the judge from “using all of the tools at his disposal under Article 28” to provide a “remedy” for Archer.

During his submissions, Basil Cumberbatch, who represents the commissioner of police and the attorney general in the matter, maintained that Section 315(2) is in fact constitutional.

“My learned friend made arguments in relation to the offence when it was initially enacted or in relation to the 1973 Constitution and my lords, he referred to modification, I believe. My lord, any offence only requires modification if it’s not constitutional, and my lords we say that it is constitutional and therefore it doesn’t require any modification,” he said.

“My learned friend’s defence is that it isn’t constitutional and that is his whole argument right there. But, my lords, we humbly submit that it is constitutional, and this appeal ought not to be allowed.”