The Jeff Cumberbatch Column – A Disproportionate Reaction?

The Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest. –US v Salerno [1987]

I suppose that one rational response by the current governing administration to a query by an individual charged with one of the offences stipulated under the amended Bail Act and thereby suffering a loss of pre-trial liberty, as to the reason for its draconian nature, could very well be, “Well, you and your ilk left us with little choice, didn’t you?” Bizarrely enough, treason and high treason are included among the offences, even though such charges are extremely rare.

With its pride deeply stung by an unacceptable rate of the murders of young men through the use of unlicensed firearms since its assumption of the reins of office; a phenomenon that culminated in the tipping point recently of the reckless Sheraton assassination, it could be reasonably expected that any administration would have reacted similarly.

For, argue as cogently we might that crime should not be politicized, in that no government can prevent someone who is hell-bent of taking the life of another from doing so, it also bears reminder, as I quoted in an epigraph to my column two weeks ago, “government’s first duty and highest obligation is public safety”. Hence, any sense of general civic insecurity will most likely redound to the disbenefit of the incumbent administration. And that is not A Very Good Thing, politically speaking.

Related link:

The Jeff Cumberbatch Column – The Tipping Point

So it was that last week, the current governing administration took to Parliament, for passage into legislation, a Bill to amend the Bail Act, Cap 122A. Mindful that the provisions of the Bill might conceivably infringe the Constitution, the preamble to the Bill read, inter alia, that it was to be enacted “in accordance with the provisions of section 49 of the Constitution”; namely, first, that Parliament may alter an aspect of Chapter III of the Constitution -the local Bill of Rights- by an Act of Parliament passed by both Houses, that is supported by the votes of not less than two-thirds of all the members of each House, and, second, that an Act of Parliament shall not be construed as altering the Constitution unless it is stated in the Act that it is an Act for that purpose. The Act expressly seeks to alter section 13 (3) of the Constitution, the guarantee of the right to personal liberty, that provides as follows-

Any person who is arrested or detained-

  1. (a)  for the purpose of bringing him before a court in execution of the order of a court; or

(b)  upon reasonable suspicion of his having committed or being about to commit a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

My Constitutional law professor, the late AR Carnegie, was given to arguing that there were in fact two meanings of the Constitution; that with the capital “C” referring to the text of the document, while that with the lower case “c” referred to all the practices, understandings and conventions that regulated the governance of the state.

That distinction may be relevant here. So that while it may be argued that the amendment is not un-Constitutional, because of the terms and mode of its enactment, one may nevertheless contend that it may be extra-constitutional if it offends certain well-established understandings of the compact of governance between the citizen and the state. Not of course, that this will suffice to invalidate the statute in a court of law, but it should at least require further enquiry as to whether any established assault by it on the liberty of the subject is morally justifiable.

Clearly, there is much wrong at first blush with a statute that mandates such a substantial deprivation of an individual’s liberty on a bare assertion. The Bill itself at least acknowledges its infringement of the guarantee of personal liberty, but it also arguably drives a ZR through the principle of the presumption of innocence, that golden metwand of the criminal law, as it has been described. In addition, by displacing the discretion of the judicial officer of whether or not to grant bail to an accused person in a particular case, it might have blurred the separation of powers, a doctrine that forms an integral part of our constitution, even though it does not find expression anywhere in our Constitutional text.

The draconian nature of this legislation does indeed merit further inquiry, although it might be justified if it is perceived to be a proportionate response to the evil that it seeks to eradicate, so long as it employs the least invasive means of infringing the fundamental right in order to do so In other words, the infringement(s) of fundamental rights may be justified if effected in pursuit of a nobler objective and the means of infringement employed are minimally invasive of those rights.

The clear objective of the legislation is to curb the present scourge of gun violence and mayhem, in itself a warranted and unobjectionable ideal. In this context though, I would be happier, as a liberal skeptic, to have been provided with some empirical evidence of the incidence of bailed reoffenders in the area of gun crimes. Three or four instances do not necessarily provide cogent evidence of a pattern sufficient to justify the annulment of a right so fundamental to the rule of law.

Is the law minimally invasive of the guaranteed rights? Ostensibly, it appears to place the acknowledged sloth of our local court system on the shoulders of the accused, by precluding an application for bail “unless a period of 24 months has expired after that person was charged”, although there are stipulated exceptions. The question arises whether these exceptions are sufficient to soften morally the plain infringement of the rule of law. Some might still consider this period too long by far and thus too textually invasive of the presumption of innocence to be deemed constitutionally pukka.

150 thoughts on “The Jeff Cumberbatch Column – A Disproportionate Reaction?

  1. Should a law not cater for all eventualities?

    Sure. Let’s create a law, detailed regulations and focus lots of time and resources for the event that the prison burns down.

    After all, the prison burned down once in our post-independence history, no?

    Failed state.

  2. *But this is exactly the point though….Given the rarity of the event why waste precious time and judicial resources in squeezing it into the Bail Act… Unless there is some ulterior motive at play?”

    @Senor Dullard it’s not called wasting time in the world of competent civil servants drafting new laws…rather, as the Blogmaster noted it’s more about “catering for all eventualities”.

    For all practical purposes the most significant crimes for any nation are murder, treason (and her cousin) espionage.

    By that measure any updating of an act related to bail and murder accuseds should by standard due diligence also include treason!

    Having said that, I have learned not to discount or dismiss some of the theories from @Pieces so I’ll continue to pay attention to this treason ting and the BLP govt!

  3. DPD,

    Precisely. We should keep an open mind and watch for evidence. That is what I do with all rumours and theories, conspiracies or otherwise.

  4. The reality is…Mia CANNOT BE TRUSTED.

    She has clearly shown that she does not care about her own people, only what she can use them to get to hide offshore….for her family friends and bribers.

    The last straw for me was that hidden information about Africa opening its doors to its African people worldwide…how dare Mia hide that information from the black majority…..when did she plan for them to find out, before or after she stole their 11 billion dollars in savings so they are unable to invest in Africa, but she and her criminal friends and bribers would use that 11 billion dollars to TIEF and invest for themselves and make sure the black majority get not one dime, continue to suffer and that would make her feel good about herself because she once against allowed her criminal masters to feed off her vulnerable people..

    Am sure she told the minorities though so they would start planning their crimes, but this is a different going down for all of them if they think they will get to continue to steal what is not theirs because Mia told them they could.

    This time we will bury their asses.

  5. Here is my take about nonexistent “eventualities” which by the way is not the correct word to be used.

    There are existing laws for treason and high treason.I

    The amending of a Bail law, WHICH TO MY LAYMAN SELF DOES NOT NEED CHANGING, because the judges already had the power to deny bail, seems to be a cover up for one single thing.


    Of course the Honourable Blogmaster has over ruled the legal luminary but people are starting to see where Mugabe is heading with these changes a la Mugabe Amin Mottley


    Locking up people for dissent while calling it treason.

    I asked Jeff to comment on the amount of times treason is in the constitution

    He did not answer

  6. @ Hal Austin


    Surely you were jesting when you said and I quote

    “…If you are concerned about the threat of treason from this government, bring it to the attention of Amnesty International and Human Rights Watch.

    Take the debate outside Barbados…”

    Having done same I can tell you it is a very lengthy process sometimes as long as 2 years – the length of detention WITHOUT BAIL!

  7. Didn’t Sidney Burnett-Alleyne grow up in the Weston, St. James area? And wasn’t he a pupil; at the St. Alban’s Boys School in the 1940’s?

  8. When somebody get a charge of treason for documents falling off of a truck, then ….

    Mia is 4-steps ahead of you braniacs

  9. “Should a law not cater for all eventualities?”

    I would bet my bottom dollar that ver few laws cater for all eventualities. I am willing to bet that even for murder there are some eventualities that were not considered.

  10. In legal systems that have a bail procedure, its operation is highly discretionary. If an accused is charged with an offense committed while free on bail, if the arrested person requires police protection, or if evidence reasonably establishes that he committed murder or treason, bail may be denied. Alternatively, bail may be set unusually high. The U.S. Supreme Court held in United States v. Salerno (1987) that bail may also be denied in some limited cases where no conditions of release can reasonably assure the safety of the community or of particular individuals.

    (2) Notwithstanding the generality of the provisions of subsection (1) a court shall refuse bail—
    (a) in the case of a person charged with treason or murder except in accordance with section 13;
    (aa) in the case of a person charged with—$FILE/77-9008aa137%20authorised.pdf

  11. Just reading up on this treason thingy. So if we kill or even attempt to kill Queen Elizabeth who lives 4,000 miles away and we haven’t seen her in more than 50 years we can be sentenced to the rest of our lives in prison.

    However if Queen Elizabeth kills or attempts to kill us what happens?

    And will reparations for the British brutality and MURDERS during hundreds of years of TransAtlantic slavery be paid before we are imprisoned or after? And is anybody asking the British how many of our people people they caused to die between 1627 and 1838? And was anybody imprisoned for life for those killings.

  12. You said and I quote

    “…The U.S. Supreme Court held in United States v. Salerno (1987) that…”

    Of late it is noted that in support of these willy nilly constitutional changes the spokesman for the Barbados labour party Is relying on all sorts of laws and regulations that are American and Australian and all round the world

    Soon I expect that you will be announcing the following

    “… (Bangkok/Barbados)– The MMalaysian/Mugabe government’s proposed new law to protect the monarchy/dictatorship from “insults” is its latest backtracking on human rights/Covenant of Hope promises, Human Rights Watch said today.

    On Januar/May 10, 2019, the minister in the Prime Minister’s Department, Liew Vui Keong/Eddie de biter of Muffs of Ladies of the Night announced that the government was considering enacting new laws with heavier punishments to protect the country’s hereditary/privileged rulers from insult by “irresponsible” people…”

    Certainly as you continue to search for precedence you might also quote us on

    “…The penalty for lèse-majesté in Thailand was toughened from a maximum of seven years imprisonment …

    Lèse majesté changed from offense against the monarchy to offense against national security in 1957…”

    This is most assuredly where Barbados is going with these insidious laws which, by moving around a comma and inserting a full stop, adding two words her, and 3 there, WHILE WE FVCKERS LOOK ONE WITH EYES WIDE OPEN, slowly but inexorably, move towards a dictatorship.


  13. The prison burn had nothing to do with laws, it was a management (lack of) issue.

    Did you miss the point on purpose or did I use a poor analogy?

    The gist of the comment is that one can not make laws for all potentialities, especially where those eventualities are highly improbable.

    • Did you miss the point of the blogmaster? It is not unusual for treason to be included in this kind of law.

  14. @Jeff

    You read Andrew Pilgrim’s remark from the Seretta Worrell matter he argued successfully?

    He asked how will our court process a murder matter in two years when it cannot hear a wounding matter in four.

  15. You must be waiting to offer critique of government’s proposal to fire judges who do not deliver judgements in six months?

    @ David, In the true sense of the word “critique”, yes!

    I asked Jeff to comment on the amount of times treason is in the constitution…

    @ Piece, It is not mentioned except here-

    79A. (1) The Attorney-General may, in the case of any offence
    to which this section applies, give general or special directions to the Director of Public Prosecutions as to the exercise of the powers conferred upon the Director of Public Prosecutions by section 79, and the Director of Public Prosecutions shall act in accordance with those directions.
    (2) This section applies to –
    (a) offences under the laws of Barbados relating to –
    (i) piracy,
    (ii) trading or otherwise dealing in slaves,
    (iii) foreign enlistment,
    (iv) publications calculated to interfere with the peaceful relations of Barbados with foreign states,
    (v) high treason, treason, misprision of treason or treachery,
    (vi) sedition or seditious meetings,
    (vii) official secrets,
    (viii) mutiny or incitement to mutiny,
    (ix) unlawful oaths; and
    (b) any offence under an enactment relating to any right or obligation of Barbados under international law.

    Please excuse my delayed response. We are in the heat of the semester in the Faculty…

  16. Sedition
    A revolt or an incitement to revolt against established authority, usually in the form of Treason or Defamation against government.

    Governments have made sedition illegal since time immemorial. The precise acts that constitute sedition have varied. In the United States, Congress in the late eighteenth century believed that government should be protected from “false, scandalous and malicious” criticisms. Toward this end, Congress passed the Sedition Act of 1798, which authorized the criminal prosecution of persons who wrote or spoke falsehoods about the government, Congress, the president, or the vice president. The act was to expire with the term of President John Adams.

    The Sedition Act failed miserably. Thomas Jefferson opposed the act, and after he was narrowly elected president in 1800, public opposition to the act grew. The act expired in 1801, but not before it was used by President Adams to prosecute numerous public supporters of Jefferson, his challenger in the presidential election of 1800. One writer, Matthew Lyon, a congressman from Vermont, was found guilty of seditious libel for stating, in part, that he would not be the “humble advocate” of the Adams administration when he saw “every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice” (Lyon’s Case, 15 F. Cas. 1183 [D. Vermont 1798] [No. 8646]). Vermont voters reelected Lyon while he was in jail. Jefferson, after winning the election and assuming office, pardoned all persons convicted under the act.

    From an online legal dictionary.


  17. And with those 3 final comments so ably expressed

    The first one by Dullard about the potentialities of a cosmic storm making its way into the the Constitution of Barbados because it too is “an eventuality”…

    The Luminary Jeff Cumberbatch who, not being a conspiracist, nor a dissenter, and being the first person I saw, on the blog, to comment on the bizarreness of this inclusion of High Treason and Treason in the Bail Act…

    And my sisteren Donna to so subtly remark on the true nature of this Act by using the parallel in the American experience to show the real reason for the law…

    and so we arrive at the point that the ole man is making and has bee making for 3 years…

    Mugabe Amin Mottley is a despot and Dictator whose sole intention IS TO BE PRESIDENT FOR LIFE notwithstanding the remarks of the Honourable Blogmaster who strangely enough is repeating the reliance on this provision in Amdrican law as if to say Amurica makes it right


  18. Brace wunnah selves for more changes to the Constitution, I see minor tweaks regarding the right of residency for descendants of Bajans in the diaspora (say grandchildren) but another huge one is on the horizon in the next few years perhaps year 3 or 4 of the mandate.

  19. @Hants

    Not trying to be an alarmist but stick around.

    The PM is aiming to be a transformational PM in the mode of Barrow and the opportunity is there with an overwhelming majority and what is the use of that power if you won’t use it.

    • @Sargeant

      She has been repeating the point that we need to grow the tax base given our small and ageing population?

  20. @David

    The traditional means of population growth will take too long, so the Gov’t will resort to other means……

  21. @ Sargeant,

    Will that non traditional means mean that I am going to have to keep my cats and dogs inside my house, because The imported citizens like dog and cat?

    One more question I would ask you, since you seem to be very much in the know.

    What % growth of the population will these numbers constitute?

    Will they be enough to say affect the outcome of the general election in 2023?

    Will the types of violence in our society shift from killings by guns to machete slaughtering?

    Will, addition to the Treason and High Treason Act, we also encounter Sharia Laws?

    I just axing for a friend…

  22. How about Ghana as a source of people to increase the Barbados population ? They have 28 million people.

    Maybe the Minister of Culture was on a fact finding mission.

    • The approach by this government as made public is to leverage the regional common market to expand market size and encourage mobility of labour to support productivity etc.

  23. @PUDRYR
    One more question I would ask you, since you seem to be very much in the know
    Let me disabuse you of that notion, I know nothing of the PM or the Gov’ts strategy but formed my opinion(s) based on the speeches in the two cities (BTW David why don’t you post the TO speech?). The allusion to Asians was made by HA and as you know they along with Muslims are the bane of his existence but those two communities have no problem expanding their percentage of the population by traditional means.

    Here’s something to whet your appetite, some door prizes were being offered and the ballot required: name, email address and City; think of what someone – say- Wong can do with that info.

    I wrote “Hants” on mine.

  24. Willie D. must have the record for the most trips between Barbados and Canada. Every two weeks for 9 years.

  25. @Sargeant April 9, 2019 3:19 PM “The traditional means of population growth will take too long, so the Gov’t will resort to other means.”

    But the traditional means of population growth is so much fun.

    i trust that the political class is not trying to take away the only fun thing that poor people have left.

  26. @ Dr. GP my fellow myope

    If you have time to waste, I would like you to go to 31 minutes and 58 seconds into this rambling shyte talk by Mugabe and she will show another person LIKE GRENVILLE PHILLIPS who does not know the Good Book (I cursed) but would like people to think that she she devil does read um

    Listen to she now just rambling through

    ” Do unto others as others do unto you…”

    Which Golden Rule Mugabe talking bout?

    Fuh real!!

    Where that come from?

    But let us not dwell on this point cause this will only bring into focus the knowledge of the sheeple and the people

    But because de ole man does not want to embarrass people and sheeple here is Matther 7:12

    “…Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets…”

    Not as others do unto you BUT HOW YOU WOULD WANT THEM TO DO UNTO YOU

    There is a completely different concept.

    But this is lost on may of wunna chvunt because Mottley pooch is really big in your face so you cant see no Golden Rule.

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