I have always been intrigued by the average Barbadian attitude to the assertion of a right or freedom by another individual. Depending on, inter alia, the identity of the individual, the nature of the right claimed and, regrettably, all too frequently, the perceived partisan political colour of that assertion, the proponent is liable either to have his or her claim endorsed; to be sharply reminded that with rights always come overarching responsibilities; or to have the plaint roundly rejected on the basis that it is not compatible with local tradition or current right thinking.
It may be because we are, as a people, not overly familiar with those rights to which we may be entitled. While many are given to err on the precise nature of those fundamental rights expressly guaranteed by the Constitution -as witness the recent erroneous assertion by the Bar Association that among these may be located the right to work, and the quaint belief that the constitutional right to privacy is equivalent in breadth to that in the US which engendered the Supreme Court decision in Roe v Wade, there are equally those who may be unaware that Barbados is a state party to at least two international conventions -the Convention on the Elimination of All forms of Discrimination against Women and the Convention on the Rights of the Child- that include the right to access to safe drinking water and sanitation.
For example, Article 24(2) of the latter Convention provides that States Parties shall…take appropriate measures:
…
(c) To combat disease and malnutrition…through, inter alia, the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution…
Even so, those rights to which we may be lawfully entitled are not absolute; indeed the catalogue of qualifications to the constitutional rights frequently exceeds the enumeration of those aspects of the right itself.
Likewise, even though there may be a legitimate expectation to the state supply of clean drinking water, regulation 12 of the Barbados Water Authority (Water Services) Regulations 1982 stipulates, “Where (a) there is a deficiency in the source of supply owing to a drought, or to any contingency affecting any supply works or machinery, or to any interruption caused by repairs, accident or other cause; or (b) the Authority or its General Manager considers it expedient to interrupt the supply of water, the Authority may, without notice, reduce or temporarily discontinue the supply of water to all or any particular area.” (sic).
It should be noted that this occurrence neither imposes any liability on the Authority nor affects the liability of an occupier to pay all the proper rates, charges or fees.
Then, sometimes, in an effort to prevent the future claimed existence of a right, those opposed to its assertion will clamour for its prior express denial by the state authorities. I am given to think that this may be the case with some of the local church authorities and the notion of same sex marriage.
To my best knowledge, no individual or body has as yet publicly expressed a desire to contract such a union locally but, ever since the US Supreme Court found by a majority that such a right existed in the due process clause of the US Constitution, the religious sector here has been engaged in a rather quixotic attempt to forestall the likelihood of any identical entitlement being argued to have been located in this jurisdiction.
I do not know to what extent that lobby has taken legal advice on the matter, but this feared eventuality is not at all possible here without substantial legislative intervention. This would become necessary since existing local law precludes both the legal consummation of any such union -thus relegating it to an inherent nullity- and, even prior, negatives the very legality of the ceremony itself, since our common law requires that this be concluded between a man who was born a man and a woman who was born a woman.
In spite of these fundamental barriers to the actuality of a lawful same sex marriage and the unlikelihood of any political party rightly concerned with electoral advantage to propose such, some elements of the church sector continues to tilt at the windmill of same sex unions, while adroitly avoiding the more fundamental issue of accordance with respect for the dignity and private life of the individual of the state criminalizing, but not at all enforcing, homosexual acts between consenting adults in private. I suppose sufficient unto the day is the proscription thereof… enforcement does not seem to matter.
Another issue during the past week that involved a limitation on a fundamental right is the alleged attempt by some to have certain information on a revelatory website criminally proscribed. Of course, this engages the fundamental right of freedom of expression, though in a most topical manner.
It should be by now notorious that the right to freedom of expression may be limited to the extent that the law in question makes provision that is reasonably required for the protection of the reputation of others. The tort of defamation has been for long been accepted as providing one legitimate restriction on this freedom. The question begs asking, however, as to whether the criminalization of defamatory expression is either reasonably required or desirable today.
This issue has provided some interesting developments. In a 2004 decision of the Judicial Committee of Her Majesty’s Privy Council, the Board there observed that criminal defamation was a reasonably justifiable aspect of the law in the democratic society of Grenada, since it was to be found in many other democratic societies “such as England, Canada and Australia…”
Yet, barely five years later in 2009, England itself abolished the concept of criminal libel. Some regional jurisdictions have followed suit, including Grenada (2012); Jamaica (2013); Trinidad & Tobago (2013 –one form only) and Antigua & Barbuda (2015). Barbados, which reformed its defamation law in 1996, has nevertheless retained the offence of criminal libel.
One of the difficulties associated with this offence is that its few regional prosecutions appear to have been largely restricted to those who engage in the defamation of public figures, particularly politicians, and not of the ordinary individual. I am not persuaded that it was intended that the offence should be used in this way in the absence of specific provision as to seditious libel concerning bringing the state or its government into contempt. There already exists the civil remedy of damages that is available to all deserving victims of this wrong.
Happy to relate, however, there has been no recent local prosecution and, given the tide of modern jurisprudential opinion, one seems unlikely anytime soon.
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