BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

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Musings:An evolving democracy (I)
8/9/2015
By Jeff Cumberbatch

“…[W] hile the old man may stand by some stupid custom, the young man always attacks it with some theory that turns out to be equally stupid.” – GK Chesterton

For some people, nothing, or very little, today is of the same quality as it was in a bygone era; one in which the individual in question existed, of course. To these persons, societal morals, educational and teaching standards, the nation’s relationship with God, the behaviour of juveniles, the standard of parliamentary debate, the exercise of their freedom of association by workers’ organisations, the quality of journalism, national athletic and general sporting prowess, and the nature of social intercourse, to name but a few, have all gone into irreversible and deleterious free fall.

Needless to say, it may have always been thus. Each generation appears to think that the one that succeeds it, despite available evidence, is hopelessly devoted to the certain destruction of the species. In a by now clichéd observation attributed to Socrates by his most celebrated student, Plato, the philosopher despaired of the youth of his day – “The children now love luxury, they have bad manners, contempt for authority; they show disrespect for elders and love chatter in place of exercise. Children are now tyrants, not the servants of their households. They no longer rise when elders enter the room. They contradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannise their teachers…”

While some of these observations would nowadays seem somewhat dated, doubtless others would be asserted to replace them in the minds of contemporary critics of the identical persuasion as Socrates. Indeed, more than a millennium after the above critique of the youth, Peter the Hermit is reputed to have bewailed in a sermon – “The world is passing through troublous times. The young people of today think of nothing but themselves. They have no reverence for parents or for old age. They are impatient of all restraint. They talk as if they know everything and what passes for wisdom is foolishness with them. As for the girls, they are forward, immodest and unladylike in speech, behaviour and dress…”

And there are more modern castigations of the same ilk. The reasons offered for these youthful failings have been as various as the catalogue of them. Most popular locally is the contemporary failure to send children to Sunday School; others have sourced them to the relaxation/abandonment of corporal punishment in schools and the village; while some have sought to invoke the supernatural and attributed it all to the influence of demons.

I cannot attest as to the validity or invalidity of any of these several theses, but likely they may all be owed to a reluctance of some Barbadians to accept that there has been an evolution of the social contract on which our state was founded and that those days, real or imagined, for which many of a certain age so nostalgically yearn are gone forever. It is my view that this process has been contributed to substantially by the technological revolution that has served to increase the individual’s access to information and has permitted him or her a broader freedom of expression, both identifiable and anonymous. In consequence, the greatest change may have occurred not in the decline of religiosity, or in the conduct of social intercourse, or even in the greater respect now paid to the guaranteed rights of the individual. Rather, it lies in a reality that depends for its very sustenance on the actualisation of these two phenomena; the advancement of the democratic process.

This argument should not require detailed explanation. Clearly, the better informed a people are, the more effective and intelligent their choices, whether electoral or otherwise, ought to be. Some governments, either not persuaded of this or perhaps all too aware of it, seek to suppress the information that is available for distillation available to the populace. However, this is not a very clever political strategy, since information, like nature, abhors a vacuum, and where authentic information is not made available to the electorate, then rumour and gossip will necessarily rush in to fill the void. This results, naturally, in a lottery, whereby an administration averse to this freedom takes the chance of that circumstance inuring to its benefit or to its detriment. In this context, the absence to date of local legislation regulating the freedom of access to public information is to be regretted, since it might lead to a presumption that there is something to be kept hidden when, indeed, there may be nothing such.

The expansion of the individual freedom of expression might, at first blush, appear more to be feared by the political class generally, especially given the emerging jurisprudential inclination for this fundamental right to trump the protection of the reputation of public figures such as those engaged in governance, the administration of justice and other public functions.

Indeed, while this notion is now firmly entrenched in many of the United States jurisdictions, it would require in the region some activism on the part of our judges to recognise, as Lord Nicholls did in 2000 that the guarantee of freedom of expression, inter alia, “enables those who elect representatives to Parliament to make an informed choice regarding individuals as well as policies and those elected to make informed decisions…”

The local defamation law is, contrary to uninitiated opinion, robust enough to accommodate a form of the public figure defence whereby such an individual who seeks to make a claim for redress for defamation must establish, in order to succeed, that the publication was malicious, in that the maker was aware that the imputation was false, was reckless as to whether it was false or not or, perhaps, was guilty of irresponsible journalism. In the absence of statutory provision to this effect, that seems unlikely in any event, a clear onus is placed on the judiciary to be proactive.

However, it does bear remarking that freedom of expression is much more than the unlikelihood of susceptibility to a defamation claim.

To be continued…