Business and Economic Commentary by Christopher Ram
Political debate must be robust. But when senior government officials make damaging allegations against their critics, freedom of expression must be considered alongside professional reputation and the unequal power of those involved. Two recent High Court decisions bring that balance into sharp focus.
Former Auditor General Anand Goolsarran and former Environmental Protection Agency head Dr Vincent Adams challenged statements the courts found defamatory. Both claims nevertheless failed. One succeeded on the defence of truth; the other on qualified privilege. The legal routes differed, but two men approaching the end of substantial professional careers were left without redress.
I declare an interest. With Khemraj Ramjattan, I represented Mr Goolsarran in his claim against Vice President Bharrat Jagdeo. An appeal has been filed.
Goolsarran: proving the accusation
In March 2023, Mr Jagdeo accused Mr Goolsarran of remaining Auditor General for most of a decade without audited accounts and suggested that a man of integrity would have resigned. Days later, he called him “part of the AFC Coalition”, accused him of silence about corruption during its tenure, and described him as a “fossil” rolled out for elections. Apparently, association with the AFC is enough to discredit a professional. Yet the Government retains in public office persons who have been convicted of criminal offences or have faced serious criminal charges. Where is the comparable concern about integrity?
Justice Peter Hugh found the statements defamatory but upheld justification – the defence that their substance was true. The central difficulty is whether the facts established justified the attack on Goolsarran’s integrity.
The judgment relied on his tenure, receipt of salary and failure to resign while audited accounts remained outstanding. But those facts require examination against his actual responsibilities and conduct. Remaining employed during an institution’s failure does not, by itself, establish deficient integrity.
The chronology is particularly important. Goolsarran was outside the Audit Office between 1982 and 1987 and became Auditor General in 1990. The court acknowledged that he had not held that office for the period attributed to him, but treated the error as peripheral because he had occupied a senior position in the Audit Office. Yet a senior position is not interchangeable with the constitutional office whose responsibilities Mr Jagdeo accused him of failing to discharge.
There is a further tension. The judgment characterised the statements as value judgments supported by true facts, while striking out fair comment, the separate defence protecting certain opinions. In striking it out, the court applied Justice Corbin’s guidance in Vincent Alexander v Bharat Jagdeo that the defence must be pleaded precisely. The question is whether reasoning appropriate to that rejected defence nevertheless supplied the basis for upholding justification.
For the second statement, the court identified the sting as selective silence about corruption, rather than political association alone. It relied on evidence of association and audit contracts awarded without open tender. But association and receipt of contracts do not themselves establish silence. The connection between the evidence and that accusation needed clear explanation.
Jagdeo did not testify. The Attorney General gave evidence for the defence, but the Vice President’s account was never tested through his own cross-examination. His absence did not automatically defeat justification; neither did it remove the burden of proving the damaging allegations. Goolsarran must nevertheless pay $250,000 in costs.
Adams: corrected, but no withdrawal
In March 2024, Minister Gail Teixeira told the UN Human Rights Committee that Dr Adams “was part of the secret PSA”, referring to the extension in 2016 of the PPP/C’s 1999 Petroleum Agreement. He joined the EPA two years after the agreement was signed – after the Agreement was published. The following day, a Committee member expressly corrected the chronology and requested clear, specific and credible information. The Minister did not withdraw the allegation, instead referring to his later regulatory role.
Justice Jacqueline Josiah-Graham found that the original defamatory implication survived the Minister’s response. She rejected the defence of truth: political affiliation and later regulatory responsibilities did not establish a connection with the agreement while its terms remained secret. Nevertheless, the court upheld qualified privilege because Dr Adams had not proved malice. Each party bears its own costs, but Dr Adams alone bears the damage to his reputation.
The judge found both witnesses honest and candid. She expressly considered the correction, the failure to withdraw and the absence of information specific to Dr Adams’s prior knowledge. The concern lies in the conclusion: despite those weaknesses, the Minister’s assumption about what an AFC executive might have known was accepted as genuinely held and insufficient to establish malice.
Qualified privilege protects certain communications between someone with a duty to provide information and a recipient with a corresponding interest. The court held that the Minister’s official answers to the Committee qualified, and that broadcasting the open proceeding did not defeat that protection.
That reasoning deserves scrutiny alongside the Jamaican case Seaga v Harper, where the Privy Council rejected protection for a politician’s public allegations made without adequate verification. The UN setting is materially different. The question remains whether privilege properly extended to the particular damaging implication and its public dissemination.
Unequal power, unequal consequences
These cases do not establish that every defamatory statement must attract liability. Truth and qualified privilege serve legitimate purposes. But their application must also withstand scrutiny where governmental power confronts an individual’s professional standing.
A Vice President and a Minister command authority, information and publicity. Public office supplies a bully pulpit: their allegations carry the apparent weight of official knowledge. Their critics bear the expense, delay and personal strain of defending reputations built over decades. Neither claimant received an apology.
That inequality should sharpen the expectation of care before accusing and correction when error is exposed. Political disagreement cannot make professional reputation expendable.
The concern is the practical balance. When a powerful official escapes liability while the critic retains the reputational injury and financial burden, others may conclude that speaking out carries too high a price. A democracy needs both vigorous political speech and effective protection for those who question its leaders.
Discussion