On Thursday, November 19, Mr Enrico Woolford of Capitol News appeared before the Commission of Enquiryset up to investigate whether there was any credible evidence to support allegations of criminal misconducton the part of Minister Gajraj. Mr Woolford was questioned by the commissioners on the matter of telephone records allegedly linking hit-man Axel Williams with the Minister, and indicated his
reluctance to identify his sources of information. As we reported in our Friday edition, this elicited the
response from the commission that it might have to compel him to give the information to assist it in its
inquiry.

The issue of journalistic privilege has been given a great deal of exposure in the US, although there is
still no absolute agreement on what rules should apply. At common law there are four categories of
persons who enjoy privilege, namely, doctors, lawyers, clergy and spouses. Conservative lawyers, such as William A. Rusher, have argued that journalists cannot be put in the same category as the four, because the common law privileges in the latter instances protect the communication, not the communicator. What media workers are arguing for, in contrast, is the privilege to keep the identity of the communicator confidential, while the communication is broadcast abroad, so to speak.

Quoted in H Eugene Goodwin's Groping for Ethics in Journalism, Rusher says that reporter's privilege is
being promoted on the basis of "the dubious theory... that anonymous revelations will serve the best
interest of the American public." Rusher's last argument, however, cuts both ways; for his part he too
is making assumptions about what is in the "best interest" of the American public.

Goodwin cites other authorities too who feel that confidentiality is justified only in a very small
number of cases, including Renata Adler who concludes that "secrecy and journalism are contradictions in terms." Having said that, however, the most famous expose of the twentieth century in the US - Watergate - which brought down a president depended on confidential sources, more especially 'Deep Throat,' whose identity has never been revealed. Without those sources, perhaps the most serious abuse of power in American history might never have been uncovered.

According to Goodwin there are also other examples in America when reporters have relied on secret sources, particularly in stories involving organized crime where lives would be at risk if confidentiality were breached. It is because of cases like these that some states have passed shield laws. These grant
journalists a similar privilege to the one the common law provides for lawyers and doctors, etc. However, not only do not all states extend such cover to reporters, but neither does federal law. Even in a state where a shield law exists, the court will not always uphold it, and when it doesn't, Goodwin says,
it is usually because the 'shield' has been superseded by the Sixth Amendment right to a fair trial.

And what about the situation in Guyana? To the best of anyone's knowledge in recent memory, the issue has never arisen in a local court of law. However, one can conclude from what the Commission of Inquiry said that they consider that the common law here too does not afford a journalist any 'privilege' where his or hersources are concerned.

What the law may or may not have to say is one thing, however, and what the ethics of the situation and the constitution require may be quite another. Certainly the current death squad case provides similarly compelling arguments for protecting secret sources as would a mafia story in the US. George Bacchus's murder alone would give cause for an anonymous source to wish to remain anonymous, let alone the many unsolved killings which have been attributed to the death squad. And if nothing else, the fact that no witnesses came forward voluntarily to the Commission of Inquiry should at least suggest to the Commissioners that ordinary citizens with potentially relevant information feel very unsafe.

Of course, it might be argued that the recently announced witness protection programme should allay
the fears of those with relevant testimony, some of whom may have spoken to journalists on the condition they would not be given attribution. However, since the agency organizing this programme is the police force, certain of whose members have been linked to the death squad, and since this is a very small society, it is unlikely to inspire much confidence.

This is in no way a reflection on the integrity or good faith of the current Commissioner of Police; it
is simply to say that it will take time before the rift between the community and the police is healed,
and the force qua force can demonstrate that the public is justified in placing its full trust in its
protective abilities. If the Commissioners insisted, therefore, that a journalist break his promise to his sources - a breach of personal ethics to begin with - in a case where those sources and many citizens with some reason perceive the risks to their safety to be high, that would seem a questionable decision on larger moral grounds. Should a commission or a court really be able to insist in peacetime that personal safety should be subordinated to what they perceive to be the larger public good? And in circumstances where risk to life is possibly involved, is it not a breach of natural justice to penalize a reporter with a fine or a jail sentence if he refuses to divulge a source's identity?

Guyana has some peculiarites which do not apply in the US. For one thing there is no Freedom of Information Act in this country, added to which the current law on the statute books effectively prohibiting public servants below the level of a PS from speaking on the record without authorization, makes it very difficult for the press to perform its function where governmental matters are concerned. And the government occupies a very large space in a small country like this. Given the fact that so many of the designated officials are reluctant to talk to the media and do not return phone calls, the press is forced to resort to unattributed sources whose jobs would be at risk if their identities were revealed.

However, in Guyana's case, the problem goes even beyond the issue of exposes of things like criminal
wrongdoing or reporting on government. A general feeling of distrust was inherited from the PNC era,
when the society was not an open one, and it was perceived that caution was the better part of valour.
Not only has this feeling persisted into the post-1992 era, but among some sectors of the population the
authorities are perceived as harbouring a capacity for pettiness and possibly vindictiveness, and they are reluctant to attach their names to public comments in consequence. At a practical level, if reporters reveal sources to a Commission or a court of law under compulsion, they would never be trusted again, and dangerous developments in need of exposure simply could not thereafter be exposed, seriously impeding the media's watchdog role in a free society. More importantly, it could be argued that if journalists were forced by a commission or a court to reveal their sources, it would in effect constitute an attack on freedom of expression protected by our constitution, for the reason again that many people would no longer be willing to divulge sensitive information.

While in the longer term, the media in this country should perhaps look at the possibility of pressing for
the enactment of a shield law, in the specific instance involving Mr Woolford and the Commission, one
can only hope that after mature reflection the Commissioners would come to the conclusion on
constitutional, ethical and practical grounds that he should not be compelled to name his sources.