A little more than a month ago, I wondered why legislators are so loath to repeal criminal libel provisions. However, in a subsequent post, I acknowledged that section 34 of the Defamation Bill, 2006 as introduced provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. It now seems that I wrote too soon and that my original skepticism was justified. No sooner had my fingers left the keyboard on the second post than news came that the Bill had returned to the top of the legislative agenda. The Committee on Justice, Equality, Defence and Women’s Rights has begun the Committee Stage of the Bill. Several amendments (pdf) are being considered, almost all of which are retrenchments upon the advances made in earlier drafts of the Bill.
It seems to me that the longer it takes to enact the Bill, the more restrictive it becomes. Nowhere is this more true than in the case of criminal libel. Head 65(1) of the draft Bill appended to the Report of the Legal Advisory Group on Defamation (disclosure: I was a member of the Group) provided for the abolition of the common law offences of criminal, blasphemous, seditious and obscene libel. This would have been a good step forward. However, in the Bill as introduced, the step forward proposed in Head 65(1) had become a little more faltering. The equivalent provision, section 34, provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. The reference to blasphemous libel had disappeared. It now seems that this conjouring trick was to make way for the introduction into the Bill of a new crime of blasphemy (see the new section 35 proposed by amendment 40 in the list of amendments currently being considered by the Committee, and to which I shall return on this blog). But, bad as this is, there’s worse. The faltering step forward represented by section 34 as introduced is now to be further amended, to provide:
The offence of defamatory libel is abolished.
The references to seditious and obscene libel have been removed, so they are no longer to be abolished. These are two regrettable, not to say retrograde, steps.
Although the last sentence of Article 40.6.1.(i) of the Constitution does require that blasphemy, sedition and indecency should be offences punishable by law, nevertheless, the first part of that provision guarantees liberty for the exercise of citizens’ rights to express freely their convictions and opinions. It is trite law that rights should be accorded the fullest possible protection and that restrictions should be as narrowly drawn as possible. If ever there was a case for the broad application of a right and a narrow ambit for a restriction, it is provided by the common law libel offences. They are ugly offences; together, they stand as a reproach to democracy, and an affront to the values of pluralism, tolerance and broad-mindedness. Let us have the original version of Head 65(1). Thereafter, we can have a debate about alternative legislation, which deals with blasphemy, sedition and indecency on their own terms rather than as aspects of criminal libel, and which sets them out within as narrow a compass as possible. This probably too much to hope for, though it is the least that the Minister should do.