Opinion
I guess I should be careful what I say – word from the Hill is that some in Government have suggested there’s a conspiracy placing Ayo Johnson in league with the Opposition to “bring down” the gummint..
Its been said before – a year ago shortly after we published Selling Bermuda. Wayne Scott, a Government Minister, using his parliamentary privilege to defame a private citizen, announced that this same wretched Sierra Leonean refugee was being paid by the PLP and his “number one mission” is to bring down the Bermuda Government.
Now, it seems, we’re willing to do it gratis.
Scott, to be fair, has since said privately that his words were misconstrued – he didn’t mean it the way the whole country heard it. But, strangely, he’s refused our request to take to the same public stage to set the record straight.
But I digress.
Opposition Leader Marc Bean might call it a “week of infamy”. Attorney General Trevor Moniz would no doubt refer to it as full of “sound and fury, signifying nothing”.
For us, the week beginning July 6 started after an exhausting weekend seeking out independent legal advice. Lawyers untainted by political influence are extremely hard to find in Bermuda. But we persevered. In the end we decided to do what in our judgment was fair, and just, while also protecting the public interest. We decided to be guided primarily by our professional duties as journalists, not the threat of defamation lawsuits – although that did play a part in our calculations – or what it might mean for this or that political party.
We calculated an “end game” scenario in the event that the contents of the MacLean affidavit were not made public and attempts were made to suppress it from being heard in open court.
(MacLean’s affidavit fleshed out allegations he had strongly hinted at last summer on talk radio – that a private citizen and three Bermuda Government legislators had attempted to extort millions of dollars from him in exchange for support of his projects)
We calculated that what resources we could gather would be better spent in court opposing any attempt to suppress the evidence, than defending ourselves from an (admittedly unlikely) defamation action.
We then began mapping facts we had already determined to be true to statements in the MacLean affidavit. This would help determine what details, if any, we would be willing to publish and defend in court. MacLean had after all made these allegations – without naming the politicians or private citizen involved – a year ago, and we had been making inquiries for months even before that infamous radio appearance. We reviewed cases involving press freedom in Bermuda and made enquiries of the legislators named in the MacLean affidavit.
One such enquiry earned us a nice note from Alan Dunch, lawyer for the Minister of Home Affairs advising us not to publish or face a defamation lawsuit “to which there would be no defense”.
We set about building the alliance for that end game scenario.
We contacted international press organizations, former editors and – in a fit of idealism – placed a phone call to Dexter Smith the new editor of The Royal Gazette. Yeah, I know, it must be the drugs.
I told Smith about the existence of the affidavit, that I was of the opinion that the public had the right to know of the very serious allegations against Government officials and that I was leaning toward doing a story about the allegations but that a final decision had not been taken. I also indicated that I would be seeking the support of an alliance of media organizations (including the RG) to oppose any attempt by Government to suppress the details of the affidavit from being heard in open court and to support us in the event we became a defendant. After all the RG has a history of fighting for the public’s right to know about such allegations against elected officials – going as far as the Privy Council on a couple of occasions.
I advised him to seek independent legal advice over the matter as Alan Dunch, who happens to be the paper’s legal counsel, also represents the Government in the very same matter.
I told him that I would be asking other media to join in the effort and planned to go public about these requests and discuss the implications of squashing the information. We agreed that I would submit a formal letter to him outlining the issues and the allegations I was referring to.
Finally, I told Dexter Smith that his stint as editor would likely be the shortest yet should he make the right decisions and demand editorial independence on the issue of the MacLean allegations and support the public’s right to know.
That he, apparently, did not – or could not – take my advice should not reflect adversely on Smith. I know only too well the climate of intimidation that journalists are forced to work under at the RG – even editors. Smith would need the support of his entire team – some of whom no doubt see themselves as more worthy of his title, and his elevation as a cynical racial play. I cannot imagine that the best among us – with a family to support and another ten years to go before retirement – would have engaged in such a battle – alone – just one week after being appointed to the “top” position.
(One memo sent to former acting editor Jeremy Deacon by Steve Thompson, the then head of the RG’s “publishing committee” referred to a “directive” demanding positive front page stories shortly after the election. The memo exposes the mercantilistic calculations that are forced to the forefront of all decision-making at the RG. Deacon, we know, resisted such violation of the principle of newsroom independence and was shown the door on the very day he was expected to be appointed the substantive editor. Thompson is now chair of the Board of Bermuda Press Holdings – a board which has not a single journalist at the table.)
As it turned out, events raced ahead of our thinking.
RG, for its part, chose not to write a single story on the issue, except for a short front page piece in which the Premier rubbished the allegations.
Bermuda Broadcasting Company saw it differently – broadcasting the allegations without naming the individuals involved.
Within 24 hours of my convo with Smith, Sherri Simmons was reading out extracts of MacLean affidavit on her radio talk show.
It may be no coincidence that the one media outlet willing to risk defamation action has strong and direct links with the Opposition party. But perhaps, for Magic 102.7, the public’s right to know was worth the risk.
RG’s silence is likely no coincidence either. But given its history in dealing with similar issues, Thompson’s rag has little mitigation for its dereliction of duty.
(Let us remember that there are still folks running around this country talking about stolen cedar beams. The same folks, no doubt, who are insisting that MacLean’s credibility is impaired and that premature airing of the affidavit material is unfair to the politicians.)
In 2007, RG and others fought for the right to publish material from a police dossier which had been stolen from storage. The dossier contained files of a police investigation which had ended three years earlier with no action taken against the elected officials, including former Premier Ewart Brown, who had been targets of the police investigation. Many took the view that the media should not have published what they couldn’t independently verify. Yet RG swung into action on its trusty white steed championing freedom of the press and the public’s right to know when the then Government obtained an injunction preventing publication. Hundreds of thousands of dollars were spent on that litigation – and no one at Par-la-Ville mentioned fear of a defamation action.
When fraudster David Bolden, in the absence of the jury, told a judge that former Premier Ewart Brown had demanded a share in his company in exchange for his support, RG swung into action again to protect the public’s right to know when Brown applied for a publication ban. Ironically, Mark “The Soldier” Pettingill represented Brown in his effort to prevent publication. Again, there was no concern about defamation from those seeking to publish the allegations.
And the RG had the same legal counsel, Dunch’s law firm MJM, then as it does today.
Dunch, a Mark Twain replica who druther keep his $1.5 million retainer from Government than go to heaven, told us that there’s a perfectly good reason why the July 10 RG editorial – a defamation primer defending its decision not to publish – contains his own exact words in a July 6 email warning me not to publish.
We’d been blunt in our suspicions. After all, Dexter Smith has spent his life as a sport journalist and an editorial on the intricate details of defamation legal history, absolute and qualified privilege and other legal technicalities seemed a lot like lawyer-speak to us. Almost as if Dunch or the Minister of Home Affairs himself had written it.
I did not write the piece. Nor did the Minister as far as I am aware, said Dunch in response to that suggestion.
We’ll have to take his word for it. After all, that would be a blatant and worst kind of conflict of interest – serious professional misconduct and a violation of an important principle with serious consequences.
Dunch also told us, in a second response (he had been “instructed” to give) to our observation that he may have been conflicted, that the RG did in fact take advice from another attorney.
It may interest you that the advice was the same as that which I have given in the past.
See our correspondence on that point here:
Still, RG’s defamation primer contains no discussion about alternative treatments of the story, and why it decided to reject those. And it contains not one mention of the public’s right to know.
In our hunt for independent legal advice, we spoke to about eight attorneys. More than enough to let us know that no two lawyers think alike on the exact same question. Dunch and his invisible colleague may well be the exception.
So there’s a perfectly bad reason why in the end the paper decided to march in lockstep with the interests of the political party that’s managing to control the Government by the slimmest of margins.
And why, at Par-la-Ville at least, the public’s right to know has become road-kill on the highway of political expediency.
At Par-la-Ville, power of a certain persuasion trumps principle time and time again at times like these.
And that should surprise no one.
Because what happened the week of July 6 is really about what’s been happening for the past 187 years.
Smith’s ancestors were enslaved when the first The Royal Gazette rolled off the presses. Appointed the King’s official printer, no truths outside its pages were tolerated by the powers that were. Since then it has consistently put profits, politics and power over principle.
Since then the primal forces of white supremacy, oligarchy and forty thievery that birthed it have never really left its cockpit. Those forces hang over the newsroom like a bad smell, stifling dissent and diversity of opinion and sustaining a culture that is the antithesis of fearless, independent journalism.
When I worked there, I imagined – in another fit of idealism – I could play a role in making it a healthier place and a more credible newspaper. That meant facing and taming those primal institutional forces. It meant reporting without fear or favour. My efforts were rewarded with an unceremonious sacking in the middle of an economic depression.
Today, its Thompson’s rag – a fossilising behemoth pretending at relevance while, paradoxically, clinging to a world where small white men regard grown African men as children.
Smith may well have to redefine success in his otherwise lily white newsroom in terms of his ability to maintain his sanity.
So what of that week?
If we have learned only one lesson from the week of July 6, I would hope it is that this country desperately needs well resourced independent media. Media that, free from undue influence of the merchant, political or other class, can afford to put ordinary people and principle first and hold the powerful to account.
For us, failure – even in the face of threats and bullying by the powerful – is not to try.
We may well be faced with that end game scenario this morning as the MacLean case resumes.
We’ll be in court to challenge – on behalf of the public, and alone if necessary – any attempt to suppress the affidavit evidence from being heard openly. The reason is simple. The legislators involved have a lot to answer for even without the allegations of criminality. And they should answer for their actions if only to clear their names. Should the Chief Justice agree that the evidence is not permissible, not one of us in the media will have any standing in the future to raise the obvious questions that will hold them to account.
And that’s a principle worth fighting for.
Update, July 26: Piece has been adjusted to correct the impression that former Premier Ewart Brown was questioned by the Police. Dr Brown has never been questioned by the Bermuda Police Services.
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