By JUAN MCCARTNEY, Guardian Senior Reporter, juan@nasguard.com

Although there have been claims to the contrary, two separate lawsuits reportedly filed by two Members of Parliament have effectively muzzled the media in terms of discussing the public and private conduct of certain elected officials. However, Bar Association President Wayne Munroe says the press is by law, free to report on both cases as long as certain rules are followed.

In a recent interview with The Guardian, Munroe said the fact that a matter has not yet been decided by a judge (sub judice) does not "in and of itself" prevent the press from running a story in which comment on the matter has been given.

"[Sub judice] doesn't prevent you from commenting on a matter because that would suggest that you couldn't address the issue at all. That is not true," Munroe said. "What you cannot do is address the issue from a point of view of who should win or who should lose the litigation. But you are still free — if you wish — to address the question."

Munroe added: "You cannot carry things where people are pining about the merits of the litigation (such as) who should win or who should lose."

"You can never report what happens in the absence of the jury for obvious reasons. Because when they are out they could get to read the paper in their absence."

The matters before the court that have highlighted the issue are civil in nature and would not go before a jury.

Last month, Minister of State for Finance Zhivargo Laing filed a lawsuit in the Supreme Court against St. Thomas More MP Frank Smith, Bain and Grant's Town MP Dr. Bernard Nottage and former Customs Controller John Rolle for allegedly defaming him in the press and in public as it relates the minister's part in changing the customs duty tariff classification of the Mona Vie health juice drink last year.

When Laing filed suit he said it was to protect his good name. He directly refuted suggestions that the lawsuit was an effort to prevent the media from reporting on the issue.

The lawsuit effectively did just that. Its impact reached the House of Assembly several weeks ago when Speaker Alvin Smith barred the St. Thomas More MP from raising the matter during the 'Members' Statements' portion of House proceedings.

The Speaker cited House rules that prevented matters which are before the courts from being discussed in Parliament.

Smith, not heeding the Speaker's warning, was asked to leave and the day's proceedings ended abruptly with the departure of the entire Progressive Liberal Party contingent from the house.

Parliament is — in most instances — a 'privileged' environment. Which means that very little of what is said that is reprinted could become the subject of a lawsuit. Therefore reporting it in the proper context usually protects a media establishment from being sued.

According to Munroe, the liability of the press depends "on how you repeat" what is said in Parliament.

"If you repeat something that is said in Parliament in so far as just reporting what has happened in Parliament fairly and honestly, then no (you are not liable)," he said. "If you then try and assert that it is true, then that's a different matter and the fine line will be which one you are doing. Because if I said, 'oh this was said in parliament' in a fashion to say 'and it was true' [and you printed it] then you would be liable."

Laing's lawsuit does not address what Smith and Nottage said about his conduct in the Mona Vie issue in Parliament but rather what Smith, Nottage and Rolle had to say about Laing's conduct when they spoke about the matter in press interviews and at public venues.

As recently as last week Smith said he had not been served with a writ from Laing.

Fox Hill MP Fred Mitchell recently expressed his disappointment in the local media for essentially refusing to run further reports on the matter.

"I met recently with one of the publishers of the newspapers and told him that I was deeply disappointed by the position that the press has taken because of the filing of the writ by [Laing]. We have had a similar experience in (Parliament) where public discussion of a matter of clear public interest was simply shut down because a writ was filed in the Supreme Court," Mitchell said, asserting that parliamentary procedure stated there was a "clear exception where there is no substantial risk of prejudice of a fair trial."

During the meeting when Smith was first asked to remove himself from the House, Prime Minister Hubert Ingraham said the government had no problem discussing anything that was before the courts in the House involving its members as long as that meant every issue before the courts involving an MP was open for discussion.

During a press conference a few days later, Nottage described Ingraham's remarks "veiled threats."

The Prime Minister did not give any specific case the government cared to discuss in the House.

In January, MICAL MP V. Alfred Gray commenced legal action in response to reports that he was allegedly found in a compromising position in the back seat of a car and promised that he would pursue legal action in the matter.

He claimed two writs of summons were filed in the Supreme Court on behalf of the former Cabinet Minister.

Gray did not identify who or what organizations the legal action was taken against, but The Tribune and The Punch both published similar articles on December 20, 2007 that alleged police found an MP in the back seat of car in a compromising position. The Tribune mentioned Gray by name as the MP. The Punch did not.

The incident allegedly occurred November 20.

Ivan Johnson, The Punch's publisher, responded to questions through an assistant on Sunday that to date he had not been served with a writ from Gray.

The Tribune's publisher Eileen Carron said yesterday that as of yesterday she had also not received anything.

A writ filed in the Supreme Court can be served up to one year after it is filed.

Mitchell, who was Gray's legal counsel in the matter, said at the time that the allegations — which Gray asserted were false — were "misleading, defamatory and injurious to his reputation as a Member of Parliament and as a counsel and attorney."

Mitchell warned members of the press to be more careful when reporting "sensitive" issues.

"It is again incumbent upon the press to understand that in playing its needed role in society, it ought to refrain from repeating salacious and unchecked allegations which injure the reputation of individuals in the eyes of right thinking members of society," he said.

Gray said in January that his announcement of the lawsuits would be his final comment on the issue.

Mitchell said: "It is now for the courts to adjudicate these matters."

In referring to the Mona Vie issue last Wednesday, Mitchell's tone was markedly different as to what the press should report.

He said: "There is no substantial risk" in discussing the Mona Vie issue.

"The rule envisages that where civil trials are involved and there is no jury, the question of substantial prejudice and risk does not arise, and particularly where the writ has not been served and no trial date is near," he said. "It leads one to the conclusion that the idea was simply to shut down public discussion. No house should fetter its discretion to discuss matters of public interest."

Mitchell also said he told the publisher he said he spoke to that the press operates under a "double standard."

"If it had been a PLP involved in an allegation of abuse of public office, you would never have heard the end of it. In fact, I find it interesting that [Laing] says he is going to sue more people. No sub judice rule stopped them from printing that though, but on the central allegation they have shut off the public discussion because of the sub judice rule," Mitchell said.

"The press should not do the public this disservice. It must carry out its role of exposing pubic malfeasance wherever it is. And there is a big difference between the titillation of their readers about alleged private peccadilloes and the question of the malfeasance of a minister's conduct in office. The latter is clearly a matter of the public interest."

Speaking generally at a recent press conference about the prime minister's offer to discuss any lawsuit involving any MP on the floor of the house, Mitchell said the discussion should only be limited to matters that are in the "public interest".

Mitchell went on to give case example of press protection when reporting matters concerning public officials.

"The House of Lords in the case Jameel vs. the Wall Street Journal reviewed and approved what it called the Reynolds's Privilege. This shields journalists from the attacks of defamation suits where they have acted reasonably in publishing even defamatory material," he said.

"I would argue that if you publish what is on the record in the case of the Mona Vie scandal from this place, it is enough to show due diligence in that regard, and any writ in libel can be safely ignored. It says that once you have acted reasonably and done fact checking then you can avail yourself of this privilege. I believe that the fact checking can be shown from the very record of this House and so it is clear that in this instant matter of Mona Vie, the Reynold's privilege is available."