The Jeff Cumberbatch Column – The Fundamental Right to Know

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

“Next to doing the right thing, the most important thing is to let people know you are doing the right thing”.John D. Rockefeller

The several guaranteed rights and freedoms in our Constitution are each directed towards a more substantial democratic existence for the individual citizen by the preservation of his or her dignity and autonomy. While those such as freedom of association and freedom of expression are perhaps integral to this thesis, no less so are the rights to freedom of movement and freedom of assembly, for examples. Each of these treats the individual as a person with an equal role to play in the construction of the on-going democratic experiment in which the country is engaged.

So that while the freedom of expression would permit the uncensored utterance of views antithetical to or in support of the official dogma, and while the freedom of association allows the individual to form alliances with those who he or she believes will advance their interests and to bring meaning to his or her life (autonomy); the rights to freedom of movement, to assembly and that not to be discriminated against regard the individual as a human being with the entitlement to be treated with respect and concern by the state (dignity).

Indeed, this point may be reinforced rather than weakened by the fact that these rights are not absolute through the injunction that restrains the state from infringing them unless the infringement is reasonably required in the public interest or reasonably justifiable or, as more pointedly stated in some regional Constitutions as “reasonably justifiable in a democratic society”.

In any future local constitutional reform however, it is my considered view that the democratic experiment may be further enhanced by the inclusion in the charter of another right or freedom, that of the right to know or, as it may be more familiarly styled, the right to freedom of information.

This right will permit the individual elector to be fully apprised of the reasons for governmental action and, to the extent that it will serve to treat the individual with the dignity and respect that should be accorded to a civic being in a democracy, it bears more than adequate comparison with the other existing fundamental rights.

What has occasioned this musing, you may ask. It all stems from last week’s column “Emergency powers and good governance” that analysed the official attempt to enact the Police (Amendment) Act 2018. Even though I did comment unfavourably on some aspects of the proposed legislation then, my greater concern was with the absence thitherto of any public disclosure by the current governing administration as to the contemporary necessity for these measures, a point buttressed during the past week in the speeches of some non-partisan members of the Upper Chamber of Parliament who called for more public consultation on the amendment. The need for explanation is also reinforced to some extent by the justificatory claim that the provided police powers already exist. If so, then the purported legislation would require even more public justification under the constitutional doctrine of occupied field, that is, that the matter is already and adequately provided for elsewhere.

Some claimed not to understand the subtlety of this argument. Inured to seeing most issues that might have the slightest element of partisan politics in black and white only, and since I had neither condemned the governing administration for its legislative intendment nor perhaps praised it, some commented that they could not decipher what argument I was trying to advance. If it needs restatement, it was simply this. The legislation is restrictive of civic entitlements and the citizen is in my view, entitled to know clearly why such legislation is reasonably required or is reasonably justifiable in our society at this time. And this is not as a matter of information only, but it also requires what I choose to call a “democratic conversation” in which the government will be obligated to listen to, consider seriously and cogently to counter any alternative views before having the legislation brought into force.

Some jurisdictions have enacted (or have promised to enact) freedom of information legislation in the form of an ordinary statute. It is doubtless an alluring electoral representation since it evinces an intention to enhance the dignity and autonomy of the individual citizen by having him or her becoming (or having the means of becoming) more informed about his or her democratic existence and thus a more useful citizen.

Under the current dispensation, the ordinary citizen is treated as a mere recipient of information that might be deemed worthy of official disclosure and is thus left to base his or her electoral choices on such trivial considerations as whether the candidate is perceived as particularly generous or has been seen in the constituency since the last general election or is rumoured to be deserving of a chance, whatever this last might mean.

This state of affairs belies the value of the vaunted educational system that is supposed to exist here. While true democracy does not demand that every citizen makes an intelligent electoral choice, it ought not to be the case that we should prove right Churchill’s pejorative tongue-in –cheek dictum that “the best argument against democracy is a five-minute conversation with the average voter”.

It would be gratifying to have the freedom of information statute enacted at least. However, I consider this civic entitlement as being of the very highest priority and am thus arguing that it should be identified rather as a fundamental obligation of the state to the citizen, a form of state action to be infringed in the public interest or where reasonably justifiable in our democratic society only.

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