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

“Barbados is not only an economy. It is a society. We must never forget this. – David Thompson (late Prime Minister of Barbados (2008-2010)

The week just past was one in which neither partisan politics nor the rickety state of our economy appeared to play a significant role in national discourse. Nary a whisper about the likelihood of devaluation, nor about the electoral chances of the aspiring individually dubbed “third” parties; nothing as to the composition of the forces of opposition massed against the current governing administration, scarcely a sigh of the thesis that the answer to all our woes might be found in the soonest dissolution of Parliament and the consequent issuance of the gubernatorial writ for a general election. Indeed, it was if politics and the economy had taken a holiday.

But, as nature is reputed to abhor a vacuum, so too seemingly does local public discussion and we witnessed the emergence of no fewer than three issues, all pertaining not to the hackneyed partisan politics and the economy; but rather to the obverse side of the coin that is Barbados – the society. It was former Prime Minister, the late David Thompson, who once famously averred that Barbados was not only an economy but also a society; implicitly asserting that overemphasis on the first might ineluctably be to the detriment of the latter and that we should never forget this.

The three issues to which I refer may each embody a cautionary tale for the type of society we might want to fashion for ourselves. First, there was the issue of whether our children should be instructed in contemporary health, human sexuality and family life in the school. This was not in itself the teachable moment however; after all, this is an issue about which some people may reasonably differ, depending on their individual perceptions of the roles of the school and of the home in certain aspects of the education of their charges.

However, as a society, we might want to eschew the blanket prohibition of inquiry by others and their right to material information through the employment of fear mongering and appeals to stigma-infused nightmare scenarios. Hence, for one opponent of the proposal, the instruction would be merely a form of child abuse and likely to have the consequence of turning our children into homosexuals. Is this the level of reasoning to which we aspire as a progressive, educated, twenty-first century Commonwealth Caribbean society? Or would we rather have employed a measure rational thinking supported by some degree of empiricism in order to persuade others of our point? For those equally opposed to the teaching of this subject in the classroom, this “reasoning” might have some level of allure, but when an argument is attended by a base appeal to myth, phobias and emotive mislabelling of the subject matter, then we may ask whether we are any further along the road than deciding matters by reading the entrails of a freshly slaughtered animal or reading the leaves left in the bottom of a teapot.

The second issue relates to last week’s “March for Respect” as it was termed by the Barbados Secondary Teachers Union [BSTU]. As I wrote last week, the provisions of international labour law, to which Barbados is signatory entitles the workers’ organization, without interference by the public authorities, “to organize its administration and activities and to formulate its own programmes”. So long as it is not in breach of the law, the organization is free to pursue whatever strategy it thinks might best achieve its objectives as the representative body of its membership, even though a march followed by inaction reminds somewhat of a damp squib.

Still, there is one aspect of the immediate dispute, the teachers’ claim to payment of remuneration for the marking of the school-based assessments [SBAs] prepared by the examinees of the Caribbean Examination Council from their schools that might contain a teachable moment. While I cannot knowledgeably comment on the merits of either the claim nor its rejoinder by the local Ministry of Education, as I am unaware of the details of either, it appears to me that this dispute could very well prove interminable, much to the disfavor of the students and the chagrin of their parents and the public. The optimal solution seems to lie in the soonest impartial arbitration of the dispute by an individual or individuals agreed to by both parties, but Barbados has been content so far to “resolve” its industrial disputes purely by social dialogue and without the use of an arbitral body of any kind. Should we continue this state of affairs or has the time now come for compulsory industrial dispute resolution by an established institution or by an ad hoc body, as may currently obtain?

The third issue is the call of the Director of Public Prosecutions two Fridays ago for the abolition of the traditional trial by jury in Barbados. Oddly enough, this call is premised on curtailing the incidence of delay and the consequent substantial backlog in criminal trials. The Director is right when he states that the right to a trial by jury is not a constitutional entitlement but, as noted by the Bar Association in its response, “scrapping jury trials would not necessarily cut down the “mountain” of cases clogging the judicial system”, especially since the delays in the system are front-loaded in that the delays tend to occur before the start of the hearing.

Further, while the right to trial by jury might not be an express Constitutional guarantee in the strict sense; it nevertheless forms part of that penumbra of unexpressed natural justice rights that are to be implied into the guarantee of a trial by a fair and impartial tribunal. One other such would be the rule against duplicity of charges so that the accused knows the precise charge against him or her to be defended. The larger idea is that the members of the jury, as men and women of the world, are far better situated to discover the truth of a matter than the judge, who can claim no special training in that regard.

This is clearly a matter for dispassionate debate by the public as part of the future ordering of our society. Would we have the trial of an accused by a lone judge or panel of judges both as determiners of the truth and also appliers of the law or shall we maintain the age-old and mostly inaccurate notion of trial by our peers as presumably obtains with the existing jury system?