The Jeff Cumberbatch Column – The Citizen, the State, Partisanship and the Rule of Law
“The country has gotten so partisan that if you’re not on my side, you’re the enemy” –Mark Cuban.
The popular misidentification of the State machinery with the party that constitutes its governing administration at the time is always likely to result in a scenario whereby any person who seeks to have the state comply with its legal prescriptions, an integral aspect of the rule of law to which we claim to subscribe, will be regarded as being diametrically opposed to that party. In extreme cases, there may be those that might go further and take umbrage at the effrontery that anyone would dare oppose state action at all. In this regard the applicant might be perceived as being opposed to the state itself.
And yet, the most frequent circumstances in which this is likely to eventuate are those where the state itself, in the interest of democratic governance, is obliged to comply with some constitutional or statutory fiat and has failed to do so. Any person, whether directly harmed by this conduct or not, is generally regarded in law as having sufficient legal standing to bring a court action to enforce state compliance with the stipulation. Therefore, to regard such a step as being antithetical to the interests of the state is perverse and may indeed be contemptuous both of the rule of law and of the legal process.
For example, it ought to be well known by now that the constitutional rights and freedoms expressly guaranteed in our Supreme Law are the obverse of fundamental injunctions to the State that neither it nor its agencies should infringe those rights except to the extent that this may be expressly permitted in the document itself. But the Constitution does even more. In addition to the injunction, it provides a mechanism whereby a person may seek to have these rights vindicated in certain circumstances. Thus section 24 provides in part: –
“…If any person
alleges that any of the provisions of sections 12 to 23 has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.”
This procedural right is clearly not contingent on any opposition to the state itself or the party then in office; simply rather that the state machinery has infringed, is infringing or is likely, on a balance of probabilities, to infringe, one of the person’s constitutionally guaranteed freedoms.
Similarly, the state machinery is required to comply through its functionaries with the basic principles of administrative justice in the conduct of its affairs. Among other things, these mandate that an administrative act or omission- an act or omission of a Minister, public official, tribunal, board, committee or other authority of the Government of Barbados exercising, purporting to exercise or failing to exercise any power or duty conferred or imposed by the Constitution or by any enactment – should not be contrary to law; that it be within the jurisdiction of the actor; that it does not contravene the principles of natural justice; that it not be an unreasonable, irregular or improper exercise of a discretion; that it ought not to be an abuse of power; that it not be arrived at on the basis of fraud, bad faith, improper purposes or through taking irrelevant considerations into account; that it was not effected through an abdication of duty by acting on instructions from an unauthorised person; that it should not conflict with an Act of Parliament; or that it was arrived at through an error of law, in the absence of evidence or through an omission to perform a duty.
In such cases, the law affords the citizen an avenue for redress in keeping with the finest traditions of enforcement of the rule of law. And, here, while relief may be granted to an individual whose interests are adversely affected by the alleged maladministration, it may also avail “any other person if the Court is satisfied that that person’s application is justifiable in the public interest in the circumstances of the case”.
A combination of partisan politics and the misidentification of the State with the ruling party referred to above might lead to the use of some excessive and intemperate language by those who imagine themselves or their interests threatened by such action against the state. I refer of course to the regrettable and unfortunate categorization recently of the applicant in one such ongoing matter as an “enemy of the state”. However, given that that applicant’s immediate interests are not likely to be adversely affected by the administrative omission of which he complains, the court will be constrained to grant a remedy only if it is satisfied that the matter conforms to the italicized words in the last paragraph.
In any case, the current action is merely procedural and cannot therefore foreclose the proposed construction for all time. Rather, it essentially seeks to have the court determine whether all that was required to be done has in fact been done and may thus fail at the very first hurdle of establishing the legal requirements necessary for the now impugned permission to have been granted.
It is easy in an era when local political partisanship has risibly conduced to a determination of which newspaper and which columnists one reads and which radio stations (and which moderators on their respective call-in programmes) one chooses to listen to or even interact with, for persons to see and decry the otherness in those who do not agree with their partisan point of view.
I am chary, however, of such a praxis applying in the context of the law that stands as the ultimate recourse of the citizen against the undeniably awesome power of the state machinery.