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 (II)
8/16/2015
By Jeff Cumberbatch
“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom…” – Benjamin Cardozo, US jurist
I posited in the first part of this essay that two of the major contributors to any evolution in local democracy are an increase in popular freedom of access to official information and an expansion of the civic freedom of expression. While there has been no contemporary positive attempt by the state to effect the former, there has been an indirect, though as yet under-utilised, realisation of the latter, as I argued last week. This is owed in part to the common law development whereby there is now an overarching regard paid to publication of material in the public interest even if it may harm an individual reputation, so long as it is responsible, and partly to the locally legislated relaxation of some of the strict rules of defamation.
However, as I also argued in closing last week, freedom of expression for the purpose of evolving democracy goes beyond its theoretical existence and depends rather on the extent to which it is availed of especially by those who hold views different to those of the accepted prevailing dogma, be it religious, political or otherwise.
In this context, self-censorship poses a threat to the democratic ideal.
To what degree may it be fairly stated that we have this form of freedom of expression in Barbados? There are two undeniable facts. First, it seems clear that there is not now, nor has there ever been, an official governmental policy of suppressing the free expression of citizens, although certain individual statements have, from time to time, betrayed a certain discomfort with contrary opinion. These are too well known to bear repetition here, but suffice it to say that both sides of the political divide have seen it fit to accuse the local print media of being unduly adverse/supportive of their party or the other. The relatively recent online publication, Barbados Today, has managed so far to avoid this partisan censure, but no doubt its turn will come. Fortunately, to my best knowledge, there are no repercussions for the accused publications, beyond perhaps loss of the custom of a few ardent party supporters.
Similarly, the government-supported Caribbean Broadcasting Corporation has been accused over the years, not entirely without justification, of being an extension of the administration in power so far as its presentation of information and general ethos are concerned. A degree of popular cynicism has developed as a result, with a resigned acceptance by the party in opposition that our turn will eventually come.
It must be remarked, however, that the greatest impact on the breadth of Barbadian freedom of expression in recent times has been the anonymity of the publisher afforded by the popular call-in programmes on local radio and, to an even greater extent, on the equally popular blogs, especially Barbados Underground. It is true that the radio contributions are frequently more guarded – clearly it is not as easy to disguise a voice. On the other hand, the blog obviously affords far more security of anonymity and posters have exploited this to the full with their unbridled criticism and, in a number of cases, their unswerving support, of the current administration.
Even though this anonymity does not render the blog publisher or the contributor wholly immune from prosecution or from a civil suit for defamation, the complexity of the legal process and the potential claimant’s probable attempt to avoid the appearance of being thin-skinned currently ensure some degree of protection for the blogging exercise. I will have more to say about this on another occasion, since I am scheduled to present a paper on the liability for defamation of intermediaries such as “blogmasters” at the annual conference of the OECS Bar Association in September.
Not everyone will be partial to this argument that the advent of the blogs has improved the quality of our democracy. Barbadians, who are ever ready to refer to corresponding responsibilities whenever a right or freedom is asserted, will no doubt point to the probability of an irresponsible abuse of free expression, especially when virtual anonymity is guaranteed, and Pete Singer, the Australian moral philosopher, contends that “the new freedom of expression brought by the Internet goes far beyond politics. People relate to each other in new ways, posing questions about how we should respond to people when all that we know about them is what we have learned through a medium that permits all kinds of anonymity and deception”.
I note the force of these arguments but they are not persuasive. I am prepared to concede that freedom of expression is not absolute and that, apart from its constitutional restrictions, the use of that freedom to incite unlawful discrimination, hatred or violence, for examples, towards a group should be proscribed.
Likewise, the assumption of certain roles may serve to restrict an individual’s freedom of expression; consider the case of the Cabinet member who is opposed to an endorsed policy of his or her administration or, to be more personal, as the new Chairman of the Fair Trading Commission, it should not be thought that I would use this space to fulminate for or against the utilities or other entities under the regulation of that body. This is the point that I believe the respondents may be trying to make in the case of the forced removal of the retired UWI professor from the organisation, CHART, that he headed and whose mission might have been diametrically in contrast to certain sentiments that he publicly advocated. Some things just may not be said.
However, beyond these restrictions and the others previously mentioned, it should be difficult to justify the legal restriction of political speech, no matter how inelegantly expressed, simply because it does not comport with the view of a governing administration.
A distinctive effort
I was intrigued to read in recent days of more students than one or two in Guyana and Trinidad & Tobago who had managed to secure passes in as many as 20 subjects in one sitting at CXC. Indeed, in one remarkable case in Guyana, the young lady secured, if I recall correctly, a total of 21 passes, all with distinction. I am not sure that I could have even attempted the undertaking of 10 “O” Levels, as they were known over four decades ago, and I sincerely congratulate these students on their truly fantastic achievements. However, and with no attempt at all to seem niggardly in their asking, the enormity of their success does raise a number of questions in my mind.
Having witnessed in my day job an alarming decline in the facility of law students, usually the cream of their crop, with the written use of English, I am forced to wonder whether these distinctive performances at CXC also reflect equal merit in written expression.
Further, it would be instructive to learn the names of the 20 or more subjects examined at CXC. Are they all justifiably relevant both substantively and intellectually?
Finally, with these kinds of results, does CXC not fear conceivable and reasonable accusations of dumbing-down the standard of regional educational achievement?
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