Our National Constitution under section 46 gives the citizens of this country the right to freedom of speech.
However, in recent times SLAPP lawsuits have prevented media organisations and public advocacy groups from highlighting matters requiring public knowledge, scrutiny and debate. SLAPP is a lawsuit designed to restrict and silence critics and burden them with legal costs etc so eventually they abandon the criticism or opposition. This lawsuit is commonly used by large corporations and individuals who have the financial resources. The ultimate aim of the plaintiff is not to win the case because in most circumstances they are guilty as ever and really have not the evidence in their defence.
Non-governmental organisations and media organisations in PNG have in recent times been hit by SLAPP suits. Most of these lawsuits have never proceeded past the institution of the court proceedings and the service of the writ itself.
In November 2009, the PNG Eco-Forestry Forum, one non-governmental organisation that has been the subject of SLAPP suits in recent years, successfully had 2 SLAPP suits dismissed by the courts for want of prosecution, 3 years after the cases was instituted by Rimbunan Hijau, for a newspaper article which was re-produced on their website. Within those 3 years, this NGO incurred legal costs even though the company did not do anything to further prosecute the matter. In the end, it was awarded costs but the stress and the suppression of debate during the course of the proceedings is a clear example of the impact of SLAPP.
The Post Courier is good example of a media organisation that continues to be hit with numerous lawsuits to prevent it from doing its job – informing the public on matters of public interest.
Section 46 of the PNG Constitution, which gives us the right to free speech is a qualified right by virtue of Section 38 of the same Constitution. Section 38 provides for instances in which rights such as that of free speech can be restricted by laws such as the defamation laws. The most prominent part of Section 38 of our constitution, among other things, is that any law purporting to restrict a qualified right must state clearly in the preamble (introduction) of the law, that it restricts a qualified right, whatever right may be. A simple check of the Defamation Act, reveals there is nothing in the preamble that declares a restriction of a qualified right. On the face of things, there is a constitutional question for the Justices of the Supreme Court.
The Law Reform Commission should therefore commence a process towards ensuring the defamation laws are amended to reflect developments in free speech in order to ensure a meaningful public participation. Our defamation law is a pre-colonial law – a cut-and-paste of the Queensland defamation law, as it existed, pre-1975.
The Queensland defamation laws have since been hugely reformed to make it more reflective of the new developments in free speech and public participation. They’ve moved on with the rest of the world!
Secondly, there is a need for whistle blower-protection legislation to encourage people to come forward with information on corrupt deals enabling both timely and appropriate prosecution of the perpetrators.