The Jeff Cumberbatch Column – Calypso Censorship and the Culture of Free Expression.

Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FC

A very few people only would dispute that the sung calypso, whether in a recorded or live performance, and whether in the genre of social commentary, “sweet soca”, party, or its most recent version, “bashment”, plays a significant role in the local Crop-Over Festival. Indeed, apart from the Kadooment Day street parade, the finals of the Pic o’ De Crop calypso competition is perhaps the most anticipated event over the final weekend. Moreover, the music may be heard from as early as May, which means that it pervades the entire festival, unlike the parade of the costumed bands that is, essentially, a one-off event.

Given the apparent primacy of this art form in the national festival, it is at least surprising that the local law regarding freedom of expression in respect of the calypso does not better protect its exposition. Much unlike our southern regional neighbor, Trinidad & Tobago, Barbados does not regard the expression of opinion in calypso as being immune from legal sanction, as those who have heard the lyrics of a Cro-Cro would doubtless affirm. Indeed, the matter has already been adjudicated in this jurisdiction.

or a Sugar Aloes

In Mirchandani et al v Barbados Rediffusion Service Ltd, where the defendant sought to introduce expert evidence of the Trinidad & Tobago practice as raising a qualified privilege applicable to the Barbadian scenario, Williams CJ would have none of it. He stated then, “In my view no privilege attaches to the publication of the calypsos and the defence of qualified privilege must fail and is struck out. “If any special protection is to be given in respect of the publication of calypsos, it should be done by statute as part of a comprehensive review of the law, and after due and appropriate consultation and balancing of the different interests.”

It is to be noted for present purposes that a privilege protects the publisher of a defamatory statement from liability and will exist where it is in the public interest that a person should be able to speak freely without fear of court action. It may be absolute or qualified. It is absolute, as in the case of words spoken in Parliament (but not outside) or in the course of court proceedings and is qualified where the defamatory imputation is made is made in pursuance of a legal, moral or social duty to a person or persons who have a corresponding interest in receiving it. The presence of this mutuality of interest between publisher and recipient is necessary and it is this form of privilege which comprised the basis of the common law defence of responsible journalism; where the House of Lords in Reynolds v Times Newspapers Ltd. (2001) recognized for the first time that media publications can be protected by a form of qualified privilege providing they satisfy the test of a public right to know and responsible journalism as formulated by ten non-exhaustive factors set out by Lord Nicholls. This judgment undoubtedly struck a blow for freedom of expression over the protection of reputation.

The defence has since been extended to cover other forms of publication besides those of the media, and has been rendered into statutory form in some jurisdictions, including Antigua and Barbuda, where section 22 of its Defamation Act 2015 protects a statement, whether of fact or opinion, that was made on a matter of public interest, and where the publisher or defendant reasonably believed it to be so. Of course, the qualified nature of this privilege means that it is liable to be nullified by malice on the part of the defendant, although in the common law defence malice would be presumed from the irresponsibility of the communication or the absence of a reasonable belief that the matter was in the public interest in its statutory form.

The analogous argument does not appear to have been put in the local case cited earlier and it is doubtful whether it would have succeed in any event. Our culture does not appear to value individual reputation as being less in the public interest than freedom of expression and any decision to the contrary, as Williams CJ intimated, was best left to Parliament as part of a law reform exercise in the circumstances.

The issue has once again come into sharp focus with the news last week that two local radio stations had “banned” airplay of two calypso compositions performed by the artist Sir Ruel, supposedly on the basis of legal advice that the lyrics or some of them cast defamatory imputations on an individual. Indeed, the legal advice obtained seemed to have differed since one radio station has banned both songs while the other has prohibited airplay for one only. It is not for me to comment on the validity of these opinions since I hold no brief, figurative or otherwise, in the matter for anyone concerned. And, in any case, I do not know the lyrics of the two songs well enough to recall the imputations they might have made.

The larger question that begs asking however, is when will our various media houses summon up enough fortitude to challenge the status quo of local defamation law that is far from the archaic description so frequently attributed to it by the uninitiated.

I recognize the constraints of this mode of action. It is far more prudent for a media house to maintain defamation insurance than it is to challenge a claimant’s action on some esoteric point of defamation law at perhaps even greater cost. More over, the sole judicial body that may deliver an authoritative ruling on the law in this jurisdiction is the Caribbean Court of Justice, an appeal to which body is a heady prospect for most.

There will be, of course those souls who perceive the partisan political element in every issue and who will wonder aloud whether the current prohibition might not have been effectuated in at least one instance because of the pointed anti-administration message of the lyrics. This would be, however to miss substantially my larger point of freedom of expression.

While it is true that the majority of regional cases on defamation from Antigua and Barbuda to Trinidad & Tobago implicate a politician as either claimant or defendant, the poignant issue in these cases is never a mere political one. Rather it is an issue of freedom of expression and the extent to which this may be exercised and trump individual reputation in the civic interest.

In one jurisdiction far more solicitous of the freedom of expression than most others, there is the “public figure defence”. Essentially, this holds that the constitutional guarantees of freedom of speech and of the press prohibit a public official from recovering damages for a defamatory imputation relating to his or her official conduct unless he or she proves that the statement was made with actual malice; that the maker of the statement knew that it was false or with reckless disregard to its falsity.

It is perhaps the odious comparison of local defamation law with this that engenders the populist view of the archaism of our law. However, for the fact that any significant change in this direction lies purely in the power of those most likely to be affected by it, the expansion of local freedom of expression is thus placed in the hands of the judiciary, as assisted by the lawyers and their perception of the common law.

The Jeff Cumberbatch Column – Time for a Change?

 press_freedom“Progress is impossible without change, and those who cannot change their minds cannot change anything.”George Bernard Shaw

The title of this piece should not, in any way, be taken as a partisan political affirmation. Indeed, the more perceptive reader would have noted the presence of the interrogation mark that converts it into a hypothesis to be tested rather than as one of those questions in Latin, as expertly taught so many years ago by LS Wellington and CQ Williams, that suggests the answer by the use of “nonne” or “num” as the first word of the sentence. In any event, my readers will be familiar with my held thesis that the really effective change that we need is not that of the decennial or otherwise change of the first letters of the acronyms of the major parties, but rather a change in ourselves so as to accomplish our civic responsibility of being useful citizens; in other words, to be responsible stewards of our living environment. In my view, this necessitates the forging of a new political compact between the governors and the governed.

We may adduce some evidence of the nature of this compact from the recent successful and uncontested constitutional challenge by one enlightened citizen, Mr David Commissiong, to the Immigration (Biometrics) Regulations 2015 that purported to empower an immigration functionary to prohibit a Barbadian citizen the freedom to re-enter the country should he or she refuse to be fingerprinted on their return from abroad. According to newspaper reports of the decision, the measure was determined to be null and void, although it was not made clear whether this was on the basis that it was unconstitutional or that the regulations themselves did not comply with the procedural requirements for their creation, another facet of Mr Commissiong’s claim.

As I wrote in this space some weeks ago under the title A dog’s breakfast, the prohibition of re-entry was, in my view, a disproportionate response to an otherwise necessary initiative to identify persons in an era when “the traditional methods of identification of persons –by photographs and numbers- have become obsolete; are incapable of preventing identity theft; are susceptible to other fraudulent abuses, and generally inadequate for their intended purpose. I also argued then that in an age of terrorist threat moreover, the existing methods of identifying individuals had clearly become unsustainable” and that, in consequence, many jurisdictions, had sought to modernize their national ID databases from the simple photograph or number to include biometric identifiers, such as fingerprints, iris recognition, voice, gait and even DNA, which would authenticate individual identity and assist in border security and that Barbados was merely acting similarly.

As is usual, in spite of its civic importance, we were not afforded the benefit of a published unofficial summary of the decision as has become par for the course in other jurisdictions. However, given that the press report asserted that the measure was found to be “both (sic) null and void” this betrays an unfamiliarity with legal terminology in general and the use of the legal doublet in particular that is, in effect, one expression where both parts mean the same thing as, for example in “to implore and beseech”; “to have and to hold” and “to aid and abet”, inter alia.

There may be a certain quiddity about the decision however if the measure itself was found to be a procedural nullity; for if so, then there would have been remained no threat by law or other state action to the fundamental right of the Barbadian citizen to freedom of movement and to the absolute injunction that “no person shall be deprived of… the right to enter Barbados”. Indeed, the doctrine of judicial restraint would have mandated a decision on the procedural matter alone. It must be conceded however that there exists a credible rumour that the order was in fact made with the consent of both parties.

Another integral aspect of the new political compact must be the legislative enabling of the citizen’s right of access to official information, or FOI, (freedom of information legislation) as it has been popularly termed. It was heartening to hear the Prime Minister assert at the media luncheon that he hosted last month that this measure had not been taken entirely off the table, although the existing draft bill might yet need some tweaking to become compatible with the local condition. I am not in full agreement with this. I am partial rather to the view that a human or civic right is universal and that while the practical enforcement of that right by the information commissioner may vary from case to case, sometimes depending on existing local culture, the legislative statement of the right itself should nevertheless accord with the minimum global standard if it is to be of any real value.

The concept of the FOI is important, according to the Office of the Australian Information Commissioner, principally because it enhances the transparency of official policy creation, administrative decision-making and the delivery of government services. It is persuasively argued further that “a better informed community is able more effectively to participate in the national democratic process”. These factors are all premised on the notion that government does not really own the information that it has acquired at public expense but that, as with the national purse, it merely holds and manages it as trustees for the principal beneficiaries, the citizenry.

On this analysis, the right of access to official information should be made subject to strictly necessary conditions only such as its release being shown to be undeniably contrary to the public interest.

I propose to continue this column by discussing freedom of expression, the enforceability of manifesto and other political promises, integrity legislation and the climate of anti-intellectualism that seems to pervade these days.

I should wish, however, also to pay tribute to Austin “Tom” Clarke, the Barbadian-Canadian author who shuffled off this mortal coil last week and who seemed, in some of his writings, to have a fascination with legal matters.

From “A Man” in the anthology, “Nine Men Who Laughed” (1986)-

“You don’t have any evidence he told her.” That’s not a prima facie case…”And he allowed the weight of the legal jargon to sink into her incredulity…

He patted his attaché case…took out some of the legal documents he had picked up a few minutes earlier, leafed through them and allowed the rustle of the documents and the jurisprudence in them to give her the heavy significance he wanted her to get…

Call for OPEN DATA for Parliamentary Expenses

Afra Raymond

Afra Raymond

No More Secret Spending!

Public Money is Our Money!

This is an open call for the Administration of our Parliament to take the lead in publishing all the details of Parliamentarian’s expenses for the past ten years – 1st January 2005 to 31st December 2015.

Recent revelations have sparked a national discussion on the use and abuse of MPs’ entitlement to Public Money for the operation of Constituency Offices. We are now having a vital and long overdue national conversation about the proper use of MPs’ benefits and the need for the public to scrutinize this aspect of public money expenditure.

Our Parliament provides freely-available information with great ease of access at and in its various online broadcasts, as well as GISL and 105.5FM.

The details of the Constituency Office expenses of MP Marlene McDonald were disclosed to Fixin T&T under the Freedom of Information Act. That precedent having been established, it is difficult to imagine that any tenable objection could be raised to the publication of the same information for the other 40 MPs.

We are therefore proposing to the Administration of the Parliament that they take this historic opportunity to lead the transition from the current ‘Freedom of Information’ paradigm, in which citizens have to apply for information, to the modern, more proactive, approach of ‘OPEN DATA’ in which public information of interest is routinely published on a voluntary basis online, in searchable databases.

We also suggest that the Legislature consider the lessons from the UK Parliament (often considered to be the our ‘Mother’ Institution), which, as a response to the parliamentary expenses scandal in 2009, announced the creation of the Independent Parliamentary Standards Authority (IPSA), intended to manage Members’ expenses at “arm’s length” from the House.

Our Parliament is our highest Court and it is important that it take the lead in setting higher standards of Transparency, Accountability and Good Governance. These challenging times call for non-partisan and decisive leadership: we expect no less from our Parliament.

Specifically, our call is for the details of MPs expenses to be published for the ten year period – January 1st 2001 to December 31st 2015, with quarterly updates as necessary. The expenses which should be disclosed are –

  • Details of annual allocation of Public Money to be spent via Parliament for operation of Constituency Offices;
  • Guidelines on the use of those sums of Public Money, together with changes in those guidelines, with updates to show when these were in force;
  • MP’s names;
  • In relation to each MP’s office/s, names of employees to include period of employment, position held, salary etc;
  • In relation to each MP and their office/s, details of the non-salary expenses claimed and paid, to include utilities (TTEC, TSTT, WASA etc) furniture/equipment rental etc;
  • In relation to each MP’s office/s, details of the rentals paid, lease/tenancy agreement;
  • Annual Financial Reports submitted to the Parliament by MPs and the consolidated Financial Reports to the Parliament.

Many of the positive steps taken by our Parliament in relation to disclosure of information were supported by former Speaker of the House, Wade Mark. We expect this to be continued by the current Speaker of the House, Bridgid Annisette-George.

Friday 25th March 2016

Afra Raymond

Disclosure Today

Trinidad & Tobago Transparency Institute

Constitution Reform Forum

We Need To Do More To Punish Perpetrators Of Corruption In Barbados

David Mabey

Our aim is to protect society from extensive, deliberate criminal deception which could threaten public confidence in the financial system.  We investigate fraud and corruption that requires our investigative expertise and special powers to obtain and assess evidence to successfully prosecute fraudsters, freeze assets and compensate victimsSFO Serious Fraud Office

Several events have occurred in the last three decades which exposed flaws in governance structures which have served us well; or so it seemed. One example is the meltdown of Wall Street which precipitated the global recession which has been with us for more than two years.

The post mortem of the disaster has revealed that old fashion greed was the motive driving many in decision making positions.  The challenge for global societies is the need to have robust regulatory systems which are marshalled in a just matter. For too long our systems of justice appear to be better equipped to punish a certain type of crime especially when it affects the ‘small’ man.

There is a view that enacting Freedom of Information (FOIA) laws will not be enough if we are to judge by those countries which have FOIA on the books. BU believes this to be a defeatist view and we are heartened by the recent action of The Serious Fraud Office in the United Kingdom by securing its first convictions of fraud against individuals accused of breaching UN sanctions. It should be of interest to Barbadians who had the ‘honour’ of being the first ‘scalp’ of the SFO.

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US Lawmakers Invested In Airport Body-Scanning Machines Company, Guess Who Might Have Caused The Mess?

Inverted Body Scanner Image Shows Naked Body In Full Living Color - Photo Credit:Prison Planet

For many who have to travel frequently by air doing the mandatory security check has become the most disliked part of the journey. Gone are the days when you dumped your carryon in a basket, empty your pockets of coin and whizzed through airport security to your onward destination. Occasionally at the sound of a beep the attendant would manually scan your person without bothering you to remove your shoes or belt. In the post 911 era travelling by air has gotten that much more difficult.

In December 2010 Minister of International Business and Transport, George Hutson alerted Barbadians that the Barbados government had acquired high tech scanning equipment at a cost of USD65,000.00.  It appears Barbados has not seen the need to go the way of body scanners, given the nature of air travel it is only a matter of time.

When one reflects on how the world has changed post-911, it boggles the mind that there is any trace of truth to reports circulating that the World Trade Centre disaster may have been averted.

Have a view of the following video:

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The Legacy Of David Thompson, The Calling Of The Next General Election And The Enactment Of The Prevention of Corruption Bill 2010 – Your Move Prime Minister Stuart!

Prime Minister Fruendel Stuart

It was interesting to hear  Brian Clarke reveal in his eulogy that the Late Prime Minister David Thompson was not passionate about the legal profession. In contrast we understand Prime Minister Fruendel Stuart has a great love for the profession. It will be left to Prime Minister Stuart to champion the  Prevention of Corruption Bill 2010 commonly referred to as Integrity Legislation (IL) which had its first reading in parliament recently. Time will tell if Stuart is motivated to enthusiastically chart the efficient implementation and application of Integrity Legislation.

The current debate in Barbados is when will Prime Minister Stuart ring the bell to call a general election constitutionally due in 2013, a state of affairs brought about by the death of David Thompson. In the opinion of BU the proclamation of IL and Freedom of Information (FOI) legislation will be critical to the decision to determining the date of the next general election. Although Stuart has been catapulted into the current role based on the unfortunate circumstance of Thompson’s death, as a member of the Democratic Labour Party (DLP) opposition campaign platform he would have endorsed the promise to deliver IL and FOI legislation as tools to fight soft corruption in Barbados on winning the government. Three years have past and the people are still waiting. If the two pieces of legislation are not rolled out before the next general election the opposition will have the making of a platform agenda.

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Two Questions For Peter Boos, Former Chairman Of Legacy Barbados Inc – Freedom Of Information Act Needed Now More Than Ever

Peter Boos

Freedom of information legislation are rules that guarantee access to data held by the state. They establish a “right-to-know” legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions Wikipedia

The excuse can be made that Integrity Legislation (IL) is a hard nut for the Barbados government to crack. The smooth implementation of IL is regarded as challenging for small countries like Barbados where nobody is a stranger. The same can’t be said for implementing Freedom of Information (FOI) legislation. Three years into its term the government of Barbados needs to deliver on FOI to be assured of some credibility before entering the gearing-up period for the next general election.

The benefit when FOI is implemented will be to arm the general public with the right of access to state data/information. There is an urgent need to replace vacuous commentary on the Internet, radio and wider society in Barbados. The cynics among us may hold the view that enforcing the legislation will prove to be another hurdle to overcome given the lousy track record of archive management in the public service. Last week BU was able to publish the list of entities who received monies from the Tourism Investment Relief Fund (TIRF). By making the names public some Barbadians were able to ask pertinent questions about the closure of the Silver Sands Hotel. Unfortunately the traditional media has not been able to determine whether the TIRF List is newsworthy.


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Beware Of Greeks Bearing Gifts

Allen Stanford

Allen Stanford

Recent reports in the international press that former Chief Financial Officer James Davis has blown the whistle on former boss and Texan billionaire Allen Stanford, may have implication for how Barbados and other small Caribbean islands welcome foreigners in the future with deep pockets. The revelation by Davis that Stanford entered a pack with his inner circle of employees and prominent others to keep regulators at bay maybe the final nail in the coffin which sees the Knight donning prison garb very soon.

Until Allen Stanford’s free fall from the pinnacle of his financial empire based in Antigua, he was the man.  Nothing of any consequence seemed to have occurred in Antigua unless it was branded Stanford. His last business venture the 20/20 tournament was hugely popular and demonstrated that he was ahead of the WIBC in trying to popularize the shorten version of the cricket game. He owned financial entities, real estate and of note many important people in Antigua.

Sanford has not been found guilty yet but there is a lesson to be learned from what has unravelled so far. One man with money carry great influence in our small islands. Often times the lack of financial resources at a national and individual level creates the opportunity for our politicians and government officials to explore shortcuts when dealing with those with deep pockets.

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