Chief justice Marston Gibson has recently slapped down the Barbados Bar Association, the lawyers’ trade union, for its impertinence in questioning how he does his job. It did not come a minute too soon. There is a culture of elitism in Barbados in which some professionally and socially well-connected people feel, as if by nature, they have a right to be excepted from the normal courtesies. It is an arrogance which has emerged to substitute for substance in other areas of their lives, such as the poverty of progressive ideas and of cultural understanding.
But, and it is relevant to the issues I want to raise in this blog, within the legal profession there is an absence of any significant liberal tradition in Caribbean (Barbadian) legal thought. I have raised this issue before to much disdain. Like the societies they regulate, what passes for legal thought is based on a Victorian social conservatism, which pre-dated human rights theory, and in which outdated practices such as hanging still play a central role in the legal imagination and, as a direct result, the idea of criminal justice.
Two dominant influences shape our deeply conservative criminal law tradition: the so-called Westminster model (lawmaking), based on the UK’s parliamentary tradition, and the common law model, based again on the England and Wales tradition of statute and case law. Linking both these traditions is the doctrine of the rule of law, the principles rooted in the Magna Carta, which stipulate that the state must have legitimate grounds for depriving a citizen of her/her liberty and right to property. One hybrid political position best exemplifies this tradition, that of attorney general.
Under our tradition, one that runs throughout the Commonwealth in one way or the other, the attorney general, a senior member of the ruling government’s Cabinet (in some jurisdiction s/he is not a member of the Cabinet i.e. the UK), s/he is also the leading lawyer for the government and state – two different entities. S/he is also head of a political department head and reporting head of the civil legal officers – director or public prosecution, the commissioner of police, solicitor general, chief justice and Registrar’s office. What separates out this political position from that of judicial officers is a formal protocol or, in some instances, a memorandum of understanding. The position can be summed up basically as the attorney general has responsibility for strategy while the top officers have responsibility for operational matters. But the attorney general is the politician answerable to parliament for all these positions, s/he is accountable under our parliamentary democratic system.
This technical difference can often be mistaken, even by highly skilled and knowledgeable practising lawyers, as we observed recently, on one occasion in this forum and on another in another place. In this forum one blogger chided me for not knowing that the DPP was ‘independent’ and recommended that I should call on that highly reputable attorney, Hal Gollop, for a basic lesson in what used to be called British Constitution principles.
The other instance was a reference in one of the national newspapers, this time by a named attorney, that the solicitor general [SG] had allegedly failed to inform the government of a crucial CCJ meeting in which the government was the defendant. I suggested to that attorney, privately, that I was under the impression that the attorney general was the government’s principal legal officer and, as such, he was accountable. The reply I received was: “Yes, the AG is the de jure legal adviser. However, the AG doesn’t advise himself: in civil matters he is advised by the SG and in criminal matters by the DPP.”
With great humility and respect, I beg to differ from both those opinions. In fact, I will venture to say that under the Westminster/Whitehall traditions, they are both wrong. I fully accept that in Barbados this is not the spirit, even if it is the law. Take policing: sometime ago the police announced that up to a third of the vehicles on the road in Barbados had no motor insurance. In any other jurisdiction this would have been a crisis. It would mean that about 30000 vehicles were lethal weapons on our streets since if they knocked down and seriously injured, or worse, killed, a member of the public there would be a legal battle for compensation.
I sensibly expected questions to be asked in parliament and the attorney general calling in the commissioner – and motor insurers – to have serious talks about how to sort out this mess. Nothing of the kind happened, as far as we are aware. Here was a classic example of where the AG had a legal, policy and administrative right to intervene in what was ostensibly a policing matter. Or, take the case of a gun dealer cleaning a loaded gun and, by accident or intentionally, killing his son. Since the only witness to the tragedy is dead, the first action by the police should have been to suspend the dealer’s gun dealing licence, prevent the suspect from leaving the country for medical treatment for a non-life threatening injury – as if the QE could not treat him – release him in to the community on conditional bail. But, horrors of horrors, when the case came up before magistrates for committal, the more serious charge being dropped by the DPP without any proper explanation to the public.
Here again, I submit, was a classic intervention point for the AG on public interest grounds, any opportunity to over-rule the DPP, re-instate the original charge, leaving the decision on innocence or guilt to the jury. Again he failed to execute his full powers under the law.
One other point worth mentioning, since it was implied in Chief Justice Gibson’s dismissive email, is the chaotic administration in the registry. One of my projects I have set myself is compiling a family tree, which entails regularly applying for certificates or birth, marriage and death. Nothing spectacular about that, just routine stuff, that is, until you come to apply to the registry for copies. First, you enter the building through the metal detector, you are checked for the dress code, all right and proper. Then you join the queue for an application form, a choice of three. Why can’t it be simplified by having a single form with the three options, allowing the applicant to cross out what is not applicable and be made available in reception so the public can help themselves?
Then the person behind the desk checks the form, quite rightly, signs it then sends the applicant off 30 feet away to the cashier who takes the money and issues an A4 receipt which the applicant has to take back to the original clerk – joining the queue again – who then confirms it is correct, accepts the application and gives the applicant a return date. All this could be simplified by giving the original clerk a cash machine who would check the application, take the cash and issue a receipt. If the application for an older person, it has to go to one of the supervisors, who will then inform you that the application has to be sent to the Archive department and would take up to three weeks. In reality, all this could be done in a day, even if you had to walk to Black Rock and back to get the certificate.
More practically, the space currently being occupies by the cashier could be used to house two or three computer monitors connected to the archive department, allowing people to do research, make applications in the morning and return in the afternoon for the actual copy of the certificate. I know some people will say that is how we do things, but because we have done things since Victorian times does not mean we must not change. There is a lazy intellectual tradition based on discursive gymnastics and point scoring rather than dealing with substantive issues which passes as part of public discussion. Ordinary people are losing confidence in the entire criminal justice system, from the police, the prosecution authorities and the courts because they experience all these examples of incompetence and resent them. This is a challenge for the chief justice and the attorney general and should dominate the agenda at their meetings until a general election is called.
I want to mention one other personal experience since I think it is important. When I went to the registry to get hold of the certificates mentioned above I was rightly asked to produce proof of identity. Of course, all these documents should be public records available to all citizens. However, I produced my Barbadian passport which was rejected by the young lady at the reception desk. She asked for a Barbados ID. When I pointed out I did not have one and asked if they were compulsory, she sucked her teeth and passed me on to her line manager, a tall elegant gentleman called Mr Straughn. Sensibly he ignored her concern and authorised the application. Two things about this: first there is a note in the public area which specifically states that a passport is a legal document for identification purposes; more importantly, a passport is universally accepted as proof of identity and here we had, in the Bds$70m building, an officer of the crown declining to accept a state document (passports are owned by the state) as legitimate. This, I submit, is a case of lack of proper training.
Analysis and Conclusion:
There is an economic angle to all this in that unless foreign investors have confidence in the legal system and the competence of the courts, they will avoid investing in this jurisdiction. How many of us will gladly invest in a Russian company, or in most of Africa for precisely these doubts?
Not to put too fine a point on it, we are in danger of having our criminal and civil justice systems being compared with failed states. We can either set about improving the systems or taking a hostile position to any one who has the temerity to raise these issues. Because we are reluctant as a culture to have robust public debates on matters of central importance about our governance, cricket and politics aside, we have failed to develop a comprehensive narrative of our perception of key concepts, such as democratic accountability, and how they are expressed in policymaking.
We drift on in the nonsensical belief at our peril.