The Jeff Cumberbatch Column – Enhancing the Freedom of Democratic Expression
One immediate consequence of the annihilation of the Democratic Labour Party in the last general election in May has been to create a vacuum in the populist democratic discourse that requires for its optimal existence the publication of an alternative view to the official dogma.
I am already aware that there exists what I called in a recent column, “a semblance of opposition” in the form of a Leader of the Opposition in the Lower House, and his two Senatorial appointments in the Upper Chamber but, apart from one member of this grouping, who I know for certain will not allow anyone to think for him on any issue, this opposition does not appear to enjoy as yet a sufficient degree of distance from the governing administration to be regarded as a consistent source of alternative views.
In any case, I am speaking of a more radical (in the true sense of that word) alternative point of view; one bred out of the instinctual populist analysis that would take each official political assertion with a grain of salt and synthesize it for accordance with what the commentator considers best for the country.
Granted, these are early days yet, and the governing Barbados Labour Party administration is still in its “honeymoon” period, and thereby entitled to some concession from the citizenry in respect of any errors of judgment that it may commit.
What ought not to happen, however, in a democracy is that this sentiment should result in any alternative view being considered as heretic and its proponent being instinctively deemed a pariah whose views do not deserve a hearing.
Already, I can sense that there are those who are uncomfortable with any criticism of this administration and more so, if that critique comes from a member of, or one considered to be a supporter of the outgone Democratic Labour Party [DLP] administration. Frequently, on the various social media, one encounters the expression of sentiments that suggest that any view critical of an initiative by the current administration is to be abhorred on the basis that on May 25 of this year, the electorate determined that there should be no opposition to the BLP government and moreover, that the DLP should have no further say in the affairs of state.
The first of these propositions runs counter to our traditional understanding of the democratic praxis and, as recent events have demonstrated, the framers of our Constitution never contemplated the occurrence of such a scenario. That it has eventuated may be owed to factors not immediately relevant to this discussion, but it is at least doubtful whether the result of the election unequivocally indicated the preference of the populace for a one-party state, where “no [other]damn dog barks”.
While the latter contention may be electorally true, at least at a parliamentary level, that rejection should be perceived rather as one qua DLP parliamentarian/candidate and not qua Barbadian citizen, so that even a member of that party that was rejected by his or her constituency should still retain the civic entitlement to air publicly his or her views on the prudential administration of the state. It would be unnecessarily churlish, un-Barbadian and undemocratic to believe otherwise.
In this connection, our Constitution does not expressly guarantee the right to freedom of political expression, as does section 4(e) of the Trinidad & Tobago Republican Constitution 1976 that declares the existence of the right “to join political parties and to express political views”. Rather, ours contents itself with a general right of freedom of expression which would doubtless also include the freedom to air political views, both in the narrower and broader senses of the word “political”.
Nonetheless, this freedom of expression is not unrestricted and is expressly made subject in section 21 (2)(a) to any law “that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons…” There are some other express restrictions besides but it is principally upon the law that seeks to protect the reputations of other persons that I should wish to focus my essay.
There is a quaint myth among some Barbadians that our defamation laws are incontrovertibly “archaic”. This perception or rather misperception is owed to the fact that the type of imputations that pass unsanctioned in the US for example would cause the publisher to be mulct in substantial damages in this jurisdiction. In fine, this is owed to the fact that we do not enjoy the public figure defence that obtains in some jurisdictions there. According to this, the constitutional guarantees of freedom of speech and of the press required a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his or her official conduct unless the claimant proves that the statement was made with actual malice, that is with knowledge that it was knowingly false or made with reckless disregard as to its falsity.
No such defence is expressly provided in our Defamation Act 1996, although that is not the fault of the drafters of that Act, since, even in the state of New York, the defence is a judicial, and not a statutory creation. It may thus be argued that given the form and nature of our constitutional right to free expression, one that pays due regard to the reputations of others, it should hamstring any similar judicial initiative here.
Owing to the need to meet an arranged deadline, I must end here for today. Next week, I propose to continue this discussion on the extent of our freedom of speech and its effect on our defamation laws and to introduce discussion of freedom of information that, I will submit, is a necessary corollary to an enhanced freedom of democratic expression.