The Jeff Cumberbatch Column – Governance, the People and the Constitution
If I had my druthers, today’s column would have been an analysis of last Thursday’s decision of the local Court of Appeal discharging the injunction restraining the dismissal of the former Governor of the Central Bank of Barbados, Dr DeLisle Worrell, by the Honourable Minister of Finance, and thus paving the way for the unhindered termination of his contract of employment, as eventually happened.
Incidentally, I should wish to offer my heartiest congratulations to the newly appointed Acting Governor, Mr Cleviston Haynes, a schoolmate from Infant’s School at “Goodland” to primary school and, eventually, to both the secondary and tertiary undergraduate levels, even though he was at my junior by at least one year. What adds to Clevie’s just deserts for this new posting, although I feel certain that it did not play any role, significant or at all, in his selection, is that he is also an avid reader of this column. But I digress unnecessarily.
Alas, the local Court of Appeal has chosen to reserve its written judgment until Friday of this week and so there is no fodder for my anticipated musing today. As a general comment however, its decision was not unexpected. Section 11 of the Central Bank of Barbados Act, Cap 323C, makes it clear that the Governor “shall be appointed by the Minister by instrument in writing for a period not exceeding 5 years and shall be eligible for re-appointment; and that “he shall be appointed on such terms and conditions as may be set out in his instrument of appointment”. This raises at least two presumptions; first that he is dismissible by the office of the Minister that appointed him under the principle that he who appoints may also disappoint and, second, since there is no local concept of permanent employment, that he is dismissible in accordance with the terms of his contract of employment.
In consequence, unless both necessary and reasonable in the circumstances , there could have been no implication of a term giving rights on termination to the employee beyond those stated in the contract. In last week’s column, I raised the issue of which entity was the Governor’s employer, whether it was the Crown or the Central Bank but, from the lay reports of the hearing in the printed press, this determination appears to have played no part in the matter. In any event, even if the Governor claimed to be entitled, under the Employment Rights Act 2012, to protection against unfair dismissal since he was an employee of a statutory corporation, this right is exclusively enforceable in the Employment Rights Tribunal and not in the ordinary courts.
Should an appeal in this matter to the Caribbean Court of Justice ensue, we shall, of course, return to its further analysis but, for now, the matter seems firmly closed.
Having been disappointed in that regard from providing material for my few readers today, I needed to find another source of discussion. It duly came last night during an online debate with some of the other contributors to a discussion forum in which I frequently intermediate.
The difference of opinion came when I offered the view that any call at this time for the holding of general elections was unlikely to be of any consequence, given that there is already a constitutionally prescribed procedure for this civic entitlement. To mimic Paul Keens Douglas, “who tell me say dat”?
I was reminded that there is still freedom of expression locally; a point I readily conceded, and that the Constitution is inherently amenable to alteration; again indisputable, although given the current text and configuration of Parliament, that is perhaps truer in theory than in practical reality. There was also a prompt that we are far too wedded to the provisions of a Constitution that was drafted by men who are long dead anyway.
My view is based on the wholly acceptable thesis that equity does nothing in vain, a maxim that should have figured significantly in the recent discharge of the order enjoining the termination of the employment of the former Governor. Why permit the continuation of a contract that has been stripped of its very substance of mutual trust and confidence? To what end?
Similarly, unless there is a plan afoot to change the basic norm (grundnorm) of the Constitution, whether by successful revolution or otherwise, a demand for general elections before they are called through the now constitutionally stipulated procedure amounts to nothing more than a vain and premature partisan political initiative cloaked in the mantle of the constitutional guarantee of freedom of expression.
It reminds so much of the fable (suitably bowdlerized for a Sunday family newspaper) of the two bulls on a promontory looking down on a field of cows grazing. “I know, I know”, yells the younger bull animatedly, “let us run down there and copulate with one of them.” No, counsels the older animal sagely, let us walk down and copulate with all!” To those in the know, the late Captain Hutt would have appropriately added two “harumphs” here.
I am aware, however, that there is extant a groundswell of popular opinion for the reform of our governance architecture. This hews towards a more civic participatory governance and would include provisions for the recall of members of parliament; term limits for some officers of state; and the enactment of integrity legislation. Those political parties that hope to secure popular acclaim in the upcoming general elections would be well advised to bone up on these matters. In the coming months, I expect to muse on them at length also.