Trinidad and Tobago, The Judicial Committee of the Privy Council, Panday v Gordon (Trinidad and Tobago) [2005]

• Jurisdiction: Trinidad & Tobago
• Subject Matter: Political views,Freedom of expression,Defamation,Damages

1. Identification of the Sentence

Trinidad and Tobago, The Judicial Committee of the Privy Council, Panday v Gordon (Trinidad and Tobago) [2005]

UKPC 36 (5 October 2005); [2006] 1 AC 427, [2006] 2 WLR 39, [2006] AC 427.

2. Abstract

The appellant, while Prime Minister of Trinidad and Tobago, made statements about a well-known businessman that

were widely broadcast. The appellant claimed that, since they were an expression of a political opinion, they were

not to be considered defamatory of the respondent under section 4(e) of the Constitution. The Judicial Committee of

the Privy Council held that section 4(e) did not provide an absolute bar against claims of defamation and the appeal

was dismissed.

3. Facts

On May 30 of 1997, the Prime Minister of Trinidad and Tobago, the appellant, made a speech at a large public

gathering to celebrate a new national holiday marking the arrival of indentured labourers from India. At the event,

he made a speech that the respondent considered to be defamatory.

The appellant’s speech focused on national unity but said that “pseudo-racists” were dividing the society to gain

political power. He then spoke of people like the respondent who he claimed wanted to maintain a “monopolistic

advantage over his competitors in the media”. He said it was these people who were resisting the efforts toward

national unity. The respondent was a well-known businessman and chairman of a large media house which operates

several newspapers and a television station. The appellant’s speech was carried on television and reports were carried

in all four daily newspapers the next day.

At trial, the judge held that the appellant’s words were defamatory and that the ordinary listener would have

concluded that the appellant was referring to the respondent, calling him a pseudo-racist who used racism to maintain

divisions in society and to gain an advantage over his media competitors. Further, the judge held that the appellant

had intended that the remarks be republished all across Trinidad and Tobago and abroad. Large damages were

awarded as a result.

At the Court of Appeal, the majority upheld the judge’s conclusions on liability. At this stage, the appellant raised a

defence using section 4(e) of the Constitution. He argued that section 4(e) gave the right to express political views

and that this section was separate from the provision which gave the right to freedom of expression. As a result, the

appellant argued that section 4(e) should not have the same restrictions. The majority of the Court of Appeal thought

it was too late to raise this defence but still rejected it, holding that the right to express political views was not an

absolute right. The court however reduced the damages awarded by the trial judge.

The Judicial Committee of the Privy Council (JCPC) agreed with the majority of the Court of Appeal and held that

there was no absolute and unqualified right to express political views under section 4(e). This would be in conflict

with and override the law of defamation which existed at the time of independence. The statements were therefore

held to be defamatory of the respondent and the appeal was dismissed.

4. Decision

The issue before the Judicial Committee of the Privy Council (JCPC) was (i) whether section 4(e) of the Constitution

of Trinidad and Tobago provided an absolute right to express political views and made them immune from

defamation claims; and ii) whether the award of damages made was appropriate for the harm alleged.

On the first issue, the JCPC considered the wording of the Trinidad and Tobago Constitution. Section 4(e) of the

Constitution is within the section protecting fundamental rights and freedoms. It says that persons have the right to

join political parties and express political views. Section 4(i), also within that section, protects freedom of

expression. The appellant argued that section 4(e) had the purpose of granting to citizens an absolute and unqualified

right to express political views. Since it was separate from 4(i), the appellant argued that it was to be given a wider

interpretation. The appellants speech was to be protected within section 4(e) because it was him expressing a political

view.

The JCPC held that though the right to express political views was critical in all democracies, the common law had

protected against defamation before Trinidad and Tobago’s independence and this had been saved by the new

Constitution. An absolute right to express political views would be in conflict with and override the law of

defamation. Without limits, it would mean that it would remove the care that should be exercised to prevent

defamatory statements to the wider public. As a result, the decision was to be one made by the courts as to the balance

to be struck between this right and other rights. The statement by the appellant was therefore held to be defamatory

and the appellant was liable to the respondent.

On the second issue of the award for damages, the appellant argued that the award was too large considering that no

allegation of bribery or corruption, no evidence of tangible losses, and no evidence of psychiatric injury was claimed.

The JCPC held that the Court of Appeal, in reducing the earlier damages but still awarding a high sum, considered

all that was necessary when making the determination and that the sum awarded was fair and appropriate.

Based on the above, the JCPC held that there was no absolute and unqualified right to express political views under

section 4(e) of the Constitution. This would be in conflict with and override the law of defamation which existed at

the time of independence. The statements were therefore held to be defamatory of the respondent. The award made

by the Court of Appeal to compensate the appellant was also held to be appropriate. As a result, the appeal was

dismissed with costs.

5. Jurisprudence

 Hong Kong, Court of Final Appeal of Hong Kong, Cheng v. Tse Wai Chun [2003] 3 HKLRD 418

 United Kingdom, Court of Appeal, Branson v. Bower [2002] QB 737

 United Kingdom, House of Lords, Horrocks v. Lowe [1975] A.C. 135

 Australia, High Court, Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520

 United Kingdom, House of Lords, Reynolds v. Times Newspapers Ltd [2001] 2 A.C. 127

 Canada, Supreme Court, Botiuk v. Toronto Free Press Publications [1995] 3 SCR 3

 New Zealand, Court of Appeal, Lange v. Atkinson [2000] 3 NZLR 385

 Canada, Supreme Court, Hill v. Church of Scientology of Toronto (1995) 126 DLR (4th) 129

 Trinidad and Tobago, Judicial Committee of the Privy Council, Matthew v. State of Trinidad and Tobago

[2005] 1 A.C. 433

 Trinidad and Tobago, Court of Appeal, Frank Solomon v. Trinidad Publishing Co Ltd (unreported) Civ

App 125 of 1987

6. Key words

 Political views

 Freedom of expression

 Defamation

 Damages