NASSAU, BAHAMAS — The Court of Appeal has denied an application by social media commentator Omar Archer for leave to appeal to the Privy Council a decision it handed down back in July in which the court upheld his intention libel conviction.
Archer contended that he has the ability to appeal to Her Majesty in Council because his action was brought under Article 28 of the Constitution.
He further argued the appellate court has no discretion to refuse the leave unless it is satisfied that the proposed appeal does not raise a genuinely disputable issue as to a breach of his fundamental rights.
In his ruling, Justice Michael Barnett said: “In my judgment, this proposed appeal does not raise a genuine dispute as to the law and does not require the attention of the Privy Council. The Privy Council in Worme clearly prescribed the parameters of the law of criminal libel and it remains for the magistrate in the trial, which has not yet been completed, to determine whether or not the applicant has in fact violated that law and what is the appropriate sanction or punishment for that breach if found guilty. That has not yet been done and cannot be decided by the Originating Notice of Motion under Article 28 or any appeal therefrom.”
Archer had appealed the decision of Justice Loren Klein, who last year dismissed Archer’s constitutional challenge to a criminal libel charge. However, Klein said the offense did not sit “happily with the edifice of a modern Constitution” and called on Parliament to give serious consideration to its viability.
Archer was arrested on September 18, 2015, and charged with intentional libel, contrary to section 316 of the Penal Code, Chapter 84. According to court documents, Archer, over the course of several days in April 2015, became embroiled in an “acrimonious exchange” on Facebook with a woman referred to as the virtual complainant. The exchange stemmed from Archer posting comments that were critical of alleged writings in a tabloid, which he attributed to the virtual complainant as a ghostwriter.
In response, in a private message, the woman, a print journalist, called Archer a “pathetic turd”; charged that a “cockroach could beat you in an election”; and asserted his mother sought to induce an abortion, which made him “retarded instead”.
Archer, however, shot back with a series of offensive allegations publicly on his Facebook page, including that the woman had a “baby in a bucket in a Rasta camp and left it to die” and that she had HIV/AIDs and was spreading the virus.
The woman complained to the police and Archer was subsequently arrested in September 2015 and charged with intentional libel.
In an accompanying judgment, Justice Jon Isaacs said: “In as much as I share the President’s view that the applicant merely seeks to cast his appeal to create a disputable issue and I am not persuaded that he has raised “a genuinely disputable issue in the prescribed category of the case” since the issue relating to the constitutionality of the offense of criminal liability has for all intents and purposes been decided by the Privy Council…I hold the view that this application amounts to a re-litigation of the issue and is, therefore, an abuse of process.”
Archer still has the right to apply to the Privy Council directly.
Loading ...
