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.

Musings: The Agard Affair

11/29/2015
By Jeff Cumberbatch

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It is always with a certain degree of trepidation that one attempts a public analysis of what might reasonably be perceived to be a partisan political event, and, given the local penchant for the simplistic categorisation of ideas rather than their critical discussion, significant teachable moments may become lost in the diligent search by the reader for mostly-imagined cryptic clues as to the partisan leanings of the author. To reuse an expression once employed by the Prime Minister among others, sometimes it is akin to a search in a dark room for a black cat that is not there!

Not that I am dissuaded by this from commenting on the issue at caption; one that has managed wonderfully to concentrate the national attention and that has morphed from an internecine spat between the sitting member of parliament for a constituency and the executive of that constituency branch of her party into a very public and woefully messy expulsion of the MP from the party last Sunday evening.

The very unlikelihood of such an outcome in our political culture that idolises the MP above all else provides ample fodder for all kinds of conjecture and hypotheses by the local chatterati, but my immediate interest in this essay, as a keen student of the law and governance, has more to do with the events of Sunday evening that culminated in the expulsion of Dr Agard than with the reasons that led to the dispute in the first place, or the subsequent reactions and non-reactions by various personalities.

It is perhaps to be regretted that some local political commentators are seeking to trivialise the relevance of law to these proceedings but, arguably, once the National Council of the Barbados Labour Party chose to adopt a quasi-judicial procedure for Dr Agard to show cause why she should not be disciplined, the matter became, principally, a legal and not merely a political one, as would have been the case, for example, had the party chose rather to proceed forthwith to deselect Dr Agard as its candidate for the constituency in the next general election and to nominate another in her stead.

The matter became even more of a legal issue when Dr Agard was informed that she could be accompanied to the hearing by a legal representative, impliedly of her choice, in spite of public utterances as to precisely whom or what the nature of this representation might be.

By thus clothing the proceedings as quasi-judicial, and given the possibility of Dr Agard’s expulsion from the party on a determination of culpability, the national council of the party irrevocably bound itself to adhere to the rule of law which, in turn, entailed that the matter should be conducted in accordance with the principles of natural justice. Perhaps some readers may be more familiar with this concept in its US formulation of due process.

The legal position is that while there may be much to be said for self-regulation by private organisations, not least their familiarity with the subject matter of internal disputes, and that sometimes it may be better for lawyers to be kept out of the matter entirely, the law nevertheless requires that any such proceedings pay due regard to, at least, the two overarching tenets of natural justice, first, that the party charged be allowed to be heard in his or her own defence (the audi alteram partem rule) and, second, that the hearing should be before an unbiased decision-maker; more familiarly known as the rule against bias.

Since last Sunday’s hearing was designed specifically to afford Dr Agard a hearing with regard to the charges preferred against her, this aspect of the matter would appear to have been satisfied or at least not denied, since it seems that her lead attorney made an objection in limine (at the outset) to the composition of the Council. To my understanding, it was, and remains, the contention of the lead attorney for Dr Agard that the tribunal assembled to adjudicate on the matter offended the rule against bias in that it included at least one member who had signed the charge sheet against his client and thus, by sitting, constituted him or herself a judge in his or her own cause. This would have been directly contrary to the Latinised version of the maxim ‘nemo debet esse iudex in causa propria sua’  no one should be a judge in his or her own cause.

The rule against bias has its general basis in the celebrated dictum enunciated as long ago as 1924 by Lord Hewart in R v Sussex Justices exp McCarthy: ‘it is not merely of some importance but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.

At a more elemental level, it is based on the premise that it is against the human psyche to decide a case contrary to his or her personal interest, and that there are certain situations where there is a real likelihood or a real danger of bias in the adjudicator. These cases of apparent bias may include circumstances where the decision maker has a personal or professional relationship of friendship or hostility with the person charged; or where there is the existence of a financial interest in the outcome of the proceedings; or where there is the likelihood of bias because of some preconceived notion of the matter in dispute that may reasonably be attributed to the hearer of the issue.

I gather from media reports that the objection on the basis of apparent bias was denied by the Council, much to the understandable chagrin of Dr Agard’s attorney, even though the issue is strictly one of mixed law and fact and not one of fact purely. In other words, the determination as to whether the Council was fairly constituted was up to the Council itself, based on its view as to whether the existing facts carried with them a real likelihood of bias. One assumes therefore that it was not of this opinion.

Events then culminated in a walkout by Dr Agard and her team and her subsequent summary expulsion from the Barbados Labour Party by the Council. It would be both imprudent and unfair for me to suggest here what the decision of the council should or should not have been. It is now up to Dr Agard and her advisors, I suppose, to decide whether a judicial review of its decision will be sought in the local courts.

The observation must be made in concluding that the entire affair has raised a number of intriguing issues. Among these are (i) that given the particularity of the charges against Dr Agard and the detailed nature of the evidence provided in support, it would appear exceedingly difficult for the charges to be rebutted on the facts; (ii) that a legal issue of whether her constitutional freedom of expression has been infringed does not arise in these circumstances. For one, this freedom may be contravened by, and be vindicated against, a statal body only, according to the state action doctrine; (iii) that any successful court action by Dr Agard will result in a quashing of last Sunday’s decision and a restoration of the status quo rather than the judicial determination of the charges against her. This might allow for a further attempt at rapprochement between the parties to the dispute, but could equally result in a re-laying of the charges; and (iv) that although we might never get a satisfactory answer to the question, it still beggars belief that there could be this degree of acrimony between an MP who still appears unfailingly devoted to the party and the ¡°engine room¡± of the party itself.

This, I presume, is where I should step out and mind my own business.

Happy Independence Day 2015!