For more than twenty years Jamaica was engaged in the process of amending the Chapter of Fundamental Rights enshrined in the Constitution of Jamaica 1962. The culmination of that project was the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which ushered in substantial changes in the application of rights (including explicit provision for horizontal rights application) and the scope of rights (for example, designing some of the equality provisions to exclude equal protection on the ground of sexual orientation). As the first case to test the terms of Jamaica’s new constitutional rights arrangements arising under the Charter, Maurice Tomlinson v Television Jamaica Ltd v Others, is of historical import. The case is significant for its assessment of the issues of horizontal rights protection, freedom of expression, and the position of gay persons under the Charter.

Tomlinson, who is a gay Jamaican and was formerly Legal Advisor to Aids-Free World, submitted a proposed Public Service Announcement (PSA) to the two major television stations in Jamaica (Television Jamaican Ltd and CVM Television Ltd). The video message encouraged tolerance towards, and respect for, the human rights of gay men in Jamaica. The stations refused to air the video, whereupon Tomlinson filed a claim in the Supreme Court of Jamaica, a court of first instance in Jamaica which has original jurisdiction in constitutional cases and is of equivalent jurisdiction to the High Court of England and Wales. Tomlinson sought declarations that the stations’ refusal constituted breaches of his right to freedom of expression under section 13(3)(c) of the Charter, and freedom to disseminate information and ideas through the media under section 13(3)(d) of the Charter. He also sought these declarations against the Public Broadcasting Corporation of Jamaica, though it was accepted during argument that as the PBCJ was a statutory body, it was limited by the terms of its statute which barred it from airing paid advertisements. The court unanimously dismissed the claim against all three defendants.

Horizontality Under the New Charter

Some of the most interesting and potentially impactful parts of the judgments delivered by the three judges of the Supreme Court concern the issue of the application of horizontal rights protection under the Charter. The Charter expressly provides for the first time that the rights and freedoms under the Charter are binding on private persons as well as the state to the extent that they are applicable in light of the right and duty under consideration. Thus, section 13(5) states:

A provision of this Charter binds natural or juristic persons, if, and to the extent that, it is applicable taking account of the right and the nature of any duty imposed by the right.

In his judgment Justice Sykes articulates an equality-based view of horizontal rights protection, stating that Jamaica copied the horizontality section in the Final Constitution of South Africa, ‘a country with significant inequality between social groups’ and that that section ‘was, perhaps, seen as a way of addressing that inequality through judicial decision on the scope and meaning of the Bill of Rights’. [191]. Indeed, constitutional scholars Stuart Woolman and Dennis Davis have argued that the inclusion of horizontal application in the South African Constitution gives recognition to the fact that power wielded by private bodies can undermine justice and that ‘inequalities in social power’ undermine the autonomy of individuals. While Justice Sykes identified horizontality as a means of addressing inequality, the Jamaican Supreme Court’s approach to horizontal protection in the Tomlinson case pays little attention to the context of inequality that surrounded the case. Justice Sykes held that the stations did not interfere with the claimant’s right to freedom of expression since the Constitution ‘does not give any private citizen … the right to use another private person’s property to disseminate his message by any technological means available.’ [311] Accordingly, he held that it was not necessary to balance the rights of the rights and responsibilities of the claimants and defendants. Justice Paulette Williams J, on the other hand, balanced the claimant’s rights to freedom of expression and the defendants’ rights to freedom of expression and held that to grant the declarations sought by the claimant would prejudice the rights of the defendants, and that since the claimant has a corresponding duty to uphold the defendants’ rights, the ‘horizontal application … is not applicable’. [98]

The judges did not sufficiently address the special position of the first and second defendants (Television Jamaica Ltd and CVM Television Ltd) as the two major television stations in Jamaica, commanding the vast majority of the market share in televised media, and their resulting dominant position in determining what is televised in Jamaica. The Court also failed to address the context of societal and structural inequalities that confront Jamaican gay men, such as the claimant. These shortcomings in the judgment are all the more striking given the emphasis placed by the members of the court on the section of the South African Constitution from which section 13(5) of the Jamaican Charter draws its influence and much of its language. The corresponding horizontality section of the South African Constitution has been said to embrace a conception of liberalism which recognizes that ‘the real issue regarding the application of fundamental rights is …about how all kinds of power are distributed throughout a polity and what that means for the lives of individuals and the associations that inhabit the larger political community.’ Despite repeated references to the South African provision and the suggestion that it was conceived in an ethos of equality, the Jamaican Court did not take sufficient notice of the context of power distribution that arose in the case before it.

A difficult issue that arises in this area is how courts should approach a conflict between the rights of private citizens. This became central to the Tomlinson case because the defendants, as media companies, also asserted their right to freedom of expression. The approach adopted by Williams J was to balance the claimant’s rights against those of the defendants. The Charter provides some guidance as to how to resolve such a conflict, section 13(2) of the Charter stating that the rights are guaranteed, ‘save only as may be demonstrably justified in a free and democratic society’. This textual guarantee ought to be a guide to determining whether a limitation of rights was justified, irrespective of whether that limitation occurred as a result of an act of the state or an act of a private party. Yet, Williams J appeared to reject the use of this section to resolve conflicting rights as between private parties, referring to the decision of the Constitutional Court of South Africa in Khumalo v Holomisa. In Khumalo the Constitutional Court balanced the media’s right to freedom of expression against the constitutional value of human dignity in determining whether the law of defamation applicable to the private parties in the dispute before the Court was consistent with the Constitution. While referring to the judgment in Khumalo, Williams J failed to note that the Khumalo Court did not actually engage with this question of whether the general limitations clause was applicable in a case of conflicts between rights. Further, the section of the Khumalo judgment that addresses horizontality has been criticised for being ‘cursory’ and there have been more recent judgments from South Africa which shed light on the horizontal application of rights and the conflict between the rights of citizens. These cases were not referred to in Williams J’s judgment. These more recent judgments are particularly interesting because they contain suggestions that the requirements in the limitations clause are relevant to cases of conflict between rights of private parties. Whichever conclusion Williams J arrived at, it would have been useful, in light of the fact that this was the first Jamaican case to raise these issues, for the judge to engage in a more comprehensive analysis of this issue.

Williams J concluded that while balancing the rights of the claimant and the defendant, the court must not tip the balance in favour of one as this would suggest that one party’s right was greater than the other. [94]-[97]. She held that to make the declarations sought against the television stations would prejudice their rights and freedoms, so the claim must be dismissed. She further held that ‘the horizontal application … is not applicable as the claimant has the duty to uphold the corresponding rights of the 1^st and 2^nd defendants.’ This invites a final observation on Williams J’s decision. While she ostensibly rejects the suggestion that the scale must be tipped in favour of one side, her decision actually does tip the balance in favour of the television stations, while undermining the rights of the claimants. Her denial of this result reflects a mistaken notion that preserving the status quo (that the PSA is not aired) is to refuse to choose, when in fact that preservation of the status quo is a rather demonstrative choice on the part of the court.

This case is of historical import in Jamaica and the Commonwealth Caribbean, and the issues that arose will no doubt be tested when the case is appealed. It is to be hoped that the appellate courts will engage in a more thorough and contextual analysis of some of the contested questions that arise in the field of horizontal rights application.

Se-shauna Wheatle is a Research Associate in Public Law at Durham University.

Suggested citation: S. Wheatle, ‘Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica’ U.K. Const. L. Blog (10 December 2013) (available at http://ukconstitutionallaw.org).