Defamation Act: A Different Interpretation

Posted on December 12, 2018 by David

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Submitted by Grenville Phillips II

Under this act, anyone who revealed genuine cases of corruption, with incontrovertible evidence, could be found guilty of defamation and punished accordingly. However, the Act protects politicians if they talked about it in parliament*

I will say it again, Grenville needs a legal advisor, and not only to serve as AG in any unlikely Cabinet of his. If there is incontrovertible evidence of the imputation made, the defense of justification will absolve any defendant in a defamation action, And there are defenses even to criminal libel-

T

he defence of comment and the defence of privilege (whether absolute or qualified) shall extend to a prosecution for criminal libel as they respectively extend to an action for defamation.

– Jeff Cumberbatch

I note that Jeff Cumberbatch is querying my understanding of the Defamation Act, which has led David to cast aspersions on my motives. Please note that I am offering myself only once more to the public as a politician, and I will not tarnish my reputation by lying to the public. Let me try to engage Jeff in an honest discussion.

I claimed that the act was cleverly written to allow a person, who is speaking the truth about an allegation of corruption, to be charged with defamation. Jeff disagrees. So Jeff, let us present and discuss evidence rather than make disparaging remarks.

1. Defence of Truth

I refer to sections 7.1 and 7.2.

(1) The defence in relation to an action for libel or slander known before the commencement of this Act as the defence of justification shall, in relation to any action for defamation brought after the commencement of this Act, be known as the defence of truth.

(2) Where an action for defamation has been brought in respect of the whole or any part of matter published, the defendant may allege and prove the truth of any of the charges contained in such matter and the defence of truth shall be held to be established if such matter, taken as a whole, does not materially injure the plaintiff’s reputation having regard to any such charges which are proved to be true in whole or in part.

My interpretation is that someone accused of defamation for, say, accusing someone of corruption, may use a defence of truth. (7.1) However, the defence of truth supported with incontrovertible evidence may not work if the plaintiff’s reputation is materially injured (7.2).

I am suggesting that by not allowing truth to be a absolute defence, a loophole has been introduced in the Act to find people, with truth on their side, guilty of defamation. Jeff, do you have another interpretation.

2. Qualified Privilege

I refer to sections 11.1 and 12.

(1) Subject to this section, the publication of any report or matter referred to in the First Schedule shall be protected by qualified privilege.
The defence of qualified privilege shall be defeated if the plaintiff proves that the defendant in making the publication complained of was actuated by malice.

My interpretation is that if, for example, an allegation of corruption with incontrovertible evidence was made at a public meeting (First Schedule 12.1), then its publication is protected by qualified privilege. However, the defence of qualified privilege can be defeated if the publication was found to be actuated by malice.

I am suggesting that by allowing malice to trump truth, a loophole has been introduced in the Act to find people, with truth on their side, guilty of defamation. Jeff, do you have another interpretation.

The Jeff Cumberbatch Column – A Miscellany of Observation

Posted on January 28, 2018 by David

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

Today, I have neither the time nor the inclination to draft an essay on a single topic for this space. Instead, I propose to write brief notes on some various topical matters that I have come across in my readings, conversations, listening, viewing and other communications that have served to amuse, bemuse, confuse and, at times, to defuse me.

The silly season

We are in the midst of what Barbadians choose to call “the silly season” although, as I have noted in this space before, this usage might be merely another case of our “humpydumptyesque” usage of words and expressions to mean exactly what we want them to mean, nothing more and, assuredly, nothing less. In this context , the Merriam Webster online dictionary gives as the definition of silly season -“a period (such as late summer) when the mass media often focus on trivial or frivolous matters for lack of major news stories or a period marked by frivolous, outlandish, or illogical activity or behavior…”

So that strictly speaking, our usage of the phrase, while patently inapplicable, both with respect to time and context, to the primary definition that views it as a late summer mass media phenomenon, may nevertheless comport neatly with the dictionary’s secondary meaning, especially given some of the conduct exhibited by the political parties and their candidates in a bid to win the electorate’s favour.

Indeed, such is the stuff of legend. We have heard of landlocked constituencies being promised beaches or even “seas”, of plans to effect certain specified reforms within the assumedly magical period of the first 100 days that rarely seem to eventuate, and of even more arguably outlandish, though alluring, projections such as a reduction of criminal activity, the prosecution of members of an outgoing administration for corruption and a miraculous removal of all those blights that might affect the national spirit. I leave readers to judge for themselves whether any of the current projections by those now aspiring to national political leadership fall into this category.

Politics and the priesthood

Our current constitutional arrangement does not preclude a priest of whatever status, faith or denomination seeking political office. In fact, a number have already served as so-called Independent Senators under section 36 (4) of the Constitution that stipulates as follows:

“Seven Senators shall be appointed by the Governor- General, acting in his discretion, by instrument under the Public Seal, to represent religious, economic or social interests or such other interests as the Governor-General considers ought to be represented…”

One has even served as a Cabinet minister in an earlier Barbados Labour Party administration and at least one other, to my best recollection, is seeking membership of the House of Assembly in the upcoming general election.

The season has nevertheless managed to engender a debate as to whether a priest should at all be engaged in local political life. I understand the debate to be centred rather on the issue of whether a priest should be demonstrably partisan, given that in a constitutional democracy that guarantees the freedoms of expression and conscience such as Barbados, the priest, as any other citizen, may not be legitimately debarred from commenting on matters of policy that impinge upon his or her opinion of what constitutes the ideal society.

Indeed, as with any society in transition, we have had to confront in recent years, a number of issues that conflict with traditional religious precepts and I do not refer solely to the legislation that permits the lawful termination of pregnancy under certain conditions, or the recognition of the union other than marriage or the legitimation of those children born to unwed parents and thus conceived in sin.

In light of the overarching tenet of Christianity that one should love his or her neighbour, the priestly view on matters such as the execution or abolition of the death penalty, the decriminalization of marijuana possession and supply and of homosexual acts between consenting adults in private would add significantly to the debate on any of these.

These contributions do not however require the priest to become partisan in any fashion, in fact it may be argued and is submitted that the priestly opinion is most cogent if he or she expresses an independent perspective with reference to authority. For the prelate to be perceived as merely echoing the dogma of the one political party or the other would, in my view, weaken the argument considerably and, perhaps, irreparably.

Post-apartheid

I have found the time this week before the commencement of lectures to take in some of the television presentation of the just concluded cricket match between India and South Africa. As expected, the performances of the players were of superior quality and it was indisputably enthralling television. What struck me most about the entire episode, however, was not the apparent gap between the performance of the lowly current regional side and that of these two contemporary leaders of the game. It was the seeming transformation of South Africa itself from what I had imagined the situation to be during the apartheid era. Given human nature, I am under no illusion that there was a stark division of the races in all facets of existence nor that all is now hunky-dory so far as that is concerned. But to see white South African males, especially, lustily cheering a dismissal by Kagiso Rabada or Lungi Ngidi or a boundary by Vernon Philander does warm the cockles of the heart and causes wonder as whether many white South Africans do not now rue in some measure those dark years of legislated separateness.

To be continued…

The Jeff Cumberbatch Column – Where there is a will…

Posted on November 19, 2017 by David

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

There is seemingly no end to the literature made available these days for the individual with an interest in the law to read. Now, in addition to the voluminous case law emanating from the numerous courts from the various relevant jurisdictions, there are the free electronic newsfeeds that offer commentary by legal firms on the most recent global developments in all areas of the law. The subscriber is free to select the areas in which he or she would like to read commentary on recently decided cases. One of these is “Mondaq”, issued every Tuesday and Thursday, and there is also the daily “Lexology”. Of course, it is not practicable for me to keep up faithfully with my daily readings from these two newsletters, so that I am sometimes made aware of a recent development of interest through the medium of a message only from a colleague who might draw it to my attention.

Such an item forms the basis of my musings today and should spark some interest in those who are interested in the law’s treatment of the testamentary dispositions of an individual who has sought to draft his or her own will, as is eminently possible legally. It is taken from a commentary by Ben Kinnear of the firm Hugh James Solicitors on the UK High Court decision in Vucicevic and Bond v Aleksic et al.

The testator in this case was born in Montenegro in 1923 and died in the UK, where he had arrived just after World War II, at age 91 in 2014. He spoke imperfect English and he left a handwritten or “holographic” will. This “will” was undated, save that it bore the year 2012, there was no attestation clause nor did it state who would be the executor, although it did purport that a senior bishop of the Serbian Orthodox Church would be “in charge”, but the Probate Registry declined to accept that he had been thereby appointed executor of the will.

The testator’s estate was valued for probate at £2,750,753, although a schedule of assets and liabilities showed a total net estate for probate purposes of £1,863,228.61, as of 2 September 2016. This included three houses, one in Djenovice (Montenegro), one in Cardiff, and one in London, as well as a number of financial investments such as bonds and shares. The testator died a bachelor, without living issue or parents. He had seven siblings of the whole blood, all of whom lived in Serbia and Montenegro. Five of the siblings predeceased the testator, leaving issue. The sixth sibling is the first defendant.

His lack of proficiency in English was clear from the document which according to the court, contained “poor grammar, misspelt words and incorrect punctuation”. These lapses, however, did not thwart the court in its efforts to ascertain the intention of the testator. As was noted by the judge, “ bad English can still make a good will as long as the testator’s meaning can be understood”.

Even though it was held on the evidence that the testator was mentally competent and therefore of testamentary capacity, the provisions of the will themselves presented additional problems. For instance, there was a legacy of 10, 00 to “Brit. Cancer Research”. As his Lordship pointedly observed, “The problem here is that there is no such organization”. This issue was eventually resolved by dividing the legacy among a number of British cancer research charities after a fruitless search to ascertain whether the testator had any connection with any one of them.

Second, there was a pecuniary legacy to “Alex Dubljevic in Cardiff (Barrister)”, but the difficulty was that words immediately following, containing the amount to be given, had been obliterated. Then, after what was obviously a telephone number, the words “£2.000. Two” appeared.

As for this, an expert opinion was sought from a forensic document examiner who examined the will using special equipment. Her unchallenged evidence, which was accepted by the court, was to the effect that:

“In my opinion, I have recovered conclusive evidence of a partial entry underneath the crossed out area…which has since been obliterated by two different black ballpoint pen inks. The partial entry reads “£_000_Eigh_”, where the underscored areas denote unclear characters. Please note that I am unable to determine if the final word reads ‘eight’ or ‘eighty’.

I have also examined the text on the remainder… and noted that the final entry “£2.000. TWO” has been written out in a different black ballpoint pen ink to the surrounding entries. Therefore, in my opinion, there is evidence to support the proposition that this entry has been added to the will at a later date.”

On this basis, the learned judge, relying on generally accepted authority, reasoned-

If the obliterations and additional words could be shown to have been made and written before the will was executed, then there would be a gift in favour of Mr Dubljevic of £2000. But the evidence as to the timing of these changes was equivocal, and therefore they were not proved to have been made before the will was executed. The presumption is that alterations were made after the will was executed: Tristram & Coote’s Probate Practice, [3.231]. The evidence of attestation does not deal with the point. However, I was satisfied that the testator had obliterated the entry with the intention of revoking that entry and had then written the words which he did with the intention of substituting those words for that entry. The revocation by obliteration could be effective as to the entry, since part of a will may be revoked. However, the additional entry in this case would not be effective, since it could not be shown on the balance of probabilities to have been made before the execution of the will and it has not been attested separately.

The unusual feature here was that the legatee himself remained in the will, which showed that the testator had a continuing intention to benefit him. Accordingly, it seemed to me that the doctrine of dependent relative revocation should apply: Tristram & Coote’s Probate Practice, [3.252]. This is that the revocation of the earlier entry is conditional on the effective substitution of the later entry. But the later entry, as I have said, could not be valid. Therefore, the intention to revoke the earlier entry, being conditional but the condition not being satisfied, was not shown. The result was that the earlier obliterated entry remained valid, if its content could be ascertained. The question was what it said.

The expert evidence said that the legacy was either of £8000 or £80,000. In a letter dated 7 March 2017, Mr Dubljevic contended for the latter, though he took no part in the proceedings and did not make any submissions at the hearing. Looking at the photographs of the areas of the obliterated entry under infrared lighting, it was possible that there might be an extra zero (for £80,000) but then the word as spelt would need two extra spaces, for a T and a Y. Moreover, £80,000 would be far more than for any other legacy given by the will. Finally, a substituted gift of £2000 would also involve a much larger reduction from the original sum given. On the balance of probabilities, I considered that the obliterated legacy was for £8000.

The limitations of space do not permit me to examine the entire decision today, but the above exemplifies the effort to which a court may go to give effect to a testamentary disposition that was clearly intended by the testator or testatrix to be carried out according to his or her expressed wishes. A short few months ago, the Caribbean Court of Justice sought to ascertain what the local Parliament meant by the word “single” in a relevant statute.

At least that was written in grammatical un-obliterated prose.

The Jeff Cumberbatch Column – More Than an Economy…

Posted on April 9, 2017 by David

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?

The Jeff Cumberbatch Column – What Would Barrow Do? [WWBD]?

Posted on March 19, 2017 by David

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The Right Excellent Errol Walton Barrow

My friends spit on the government.

I do not think is just the government.

Suppose all the gods too old,

Suppose they dead and they burning them…The Saddhu of Couva -Derek Walcott

The current public discourse on governance and the economy is nothing if not a cacophonous babel of contesting opinions. To the few casual observers, it must remind so much of a meme I saw on Facebook recently where a bemused gentleman stands looking from one side of a crowd to the other in puzzlement. The caption states “When everyone is arguing over whether the answer was 63 or 75 but your answer was Henry the 8^th…” or, to localize it “When everyone is arguing over whether or not the Prime Minister should be forced to advise the Governor General to call elections but your suggestion was that the dollar should not be devalued”.

In recent days we have heard it all. “Go to the IMF while there is still time”, some thinkers urge. “No we shall not”, rejoins the government, while offering no clear alternative as to what should be the optimal recourse in that event. One member of Cabinet suggests the use of a sinking fund facility from the United Arab Emirates; an option seemingly not accepted by his other Cabinet colleagues. At the same time, the parliamentary Opposition, as a shark scenting the blood of a wounded administration in the choppy waters of state, incites the population to show its disgust with the existing state of political and economic affairs, although likewise offering no public disclosure of its strategy for our national salvation and no fewer than four “third” parties raise their several heads above the parapet of electoral engagement.

So far, these last are equally silent as to their individual rescue programmes for the economy. It seems as if their collective strategy is founded upon a popular ennui with the two traditional parties that they expect will somehow translate into popular affection for their candidates, whose main attributes so far appear to be that they are not contesting the elections on behalf of either the Barbados Labour Party or the Democratic Labour Party. Indeed, one of these groupings has even seen it fit to claim a number of candidates without revealing their identities, raising a question not only as to their political courage, but also as to their absurdly supreme level either of confidence or of foolhardiness to imagine that a people who traditionally vote for an individual more on the basis of personality and party than on that of policy in the thirty constituency battles will readily embrace any thitherto unknown candidate with less than a year’s notice. To each his own, I suppose, and I can certainly claim no initiation in these matters.

There is also a veritable Babel locally as to the moral legitimacy of public taxation in these times. There is a popular demand for continued civic entitlements that can only be met by added increments in the dwindling public purse. Yet every official suggestion that taxes should be paid and each attempt to enforce this is met with populist resistance while complaints as to the standards of public service at institutions such as the schools, healthcare facilities and other state departments continue unabated.

It is about time that I explain the title of this essay. It is generally accepted by most, though not all, Barbadians that the Right Excellent Errol Barrow, as he is now titled, was a successful leader of Barbados. The question posed is thus akin to the one that those of the Christian faith sometimes ask themselves, perhaps ungrammatically, to inform a course of action –“What would Jesus do?”

While I categorically deny any charge of intentional blasphemy, it is similarly suggested that those members of the governing administration, who claim his legacy, should ask themselves, to be more grammatically correct, what would Barrow have done if he were faced with this identical economic situation?

I do not expect this to be a popular suggestion or even that those who have the authority to ask and answer the question and to implement the response will do so. Indeed, the honest answer may be uncomfortable at some levels. There may, of course, also be an argument that Mr. Barrow was never faced with such stringent economic circumstances in his time and thus would have been lost as to contemporary solutions. Others may rightly claim that to them have fallen the reins of governance and any solution must be based on their collective intellect and political savoir-faire. I cannot fault this latter claim…it is just that there appears to be a crying need for the creative political solution at this time.

Today’s epigraph is in tribute to the late St Lucian Nobel Laureate Derek Walcott who shuffled off this mortal coil on Friday. It was a joy to read Walcott’s poetry that betrayed the mind of a classicist at heart and also of a keen observer of the human condition.

My favourite Walcott lines, suitably bowdlerized for a family newspaper.

In idle August, while the sea soft,

and leaves of brown islands stick to the rim

of this Caribbean, I blow out the light

by the dreamless face of Maria Concepcion

to ship as a seaman on the schooner Flight.

Out in the yard turning gray in the dawn,

I stood like a stone and nothing else move

but the cold sea rippling like galvanize

and the nail holes of stars in the sky roof,

till a wind start to interfere with the trees.

I pass me dry neighbor sweeping she yard

as I went downhill, and I nearly said:

“Sweep soft, you witch, ’cause she don’t sleep hard,”

but the bitch look through me like I was dead.

A route taxi pull up, park-lights still on.

The driver size up my bags with a grin:

“This time, Shabine, like you really gone!”

I ain’t answer the ass, I simply pile in

the back seat and watch the sky burn

above Laventille pink as the gown

in which the woman I left was sleeping,

and I look in the rearview and see a man

exactly like me, and the man was weeping

for the houses, the streets, that whole f…ing island.– The Schooner Flight.

Farewell, Sir!

The Jeff Cumberbatch Column – The Rule of Law and Presidential Authority

Posted on February 12, 2017 by David

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Jeff Cumberbatch – Columnist, Barbados Advocate

“A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power.” “He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.” –James Yoo, University of California (Berkeley)

I feel almost a sense of compulsion to apologize to readers of the Barbados Advocate for returning for a second week to a commentary on the any matter associated with the ne’er-do-well Trump presidency in the US. This is even more keenly felt when locally there is much fodder for a columnist; last week’s launching of what claims hopefully to be a third political way; an unseemly public disagreement between Board and Governor at the Central Bank; and an overdue determination from the Prime Minister as to the viability of the controversial Bridgetown Hyatt project However, today’s effort is concerned only tangentially with what is swiftly morphing into a U S kakistocracy and pertains rather to the ongoing battle between the Trump administration and the courts for the constitutional governance of the republic.

A few columns back, I had tentatively advanced the thesis that President Trump, having been abandoned by some of the leading lights of the Republican party under whose banner he ostensibly campaigned, might have adopted an attitude of “I-can–and-will-do-it-myself” and thereby assume the role of a latter-day monarch. While I am not prepared to argue whether or not this has become an actuality, his attitude towards judicial rulings that have been adverse to him leads one to conclude that he is behaving less than merely a disgruntled litigant and more like one who regards the prudential application of the law as an officious gadfly to his overweening ambitions.

To bring the point closer home, if this were a game of cricket in the road and the bat and ball were his, he would have long ago taken both up and gone home in a huff after disagreeing vehemently with the umpire’s verdict that he was clearly out.

Readers will be reminded that both the “so-called judge”, as Robart J. was so irreverently termed, and the three judge federal appeals panel have rejected President Trump’s attempt to prohibit entry into the US of nationals from seven largely Muslim nations. These rulings have driven a ZR through a major plank of the president’s efforts to “make America great again”, the appeals court ruling stating that the Trump administration had shown no evidence that anyone from the embargoed nations had committed or were likely to commit terrorist acts in the US. Mr Trump’s bold openly voiced discriminatory threat to ban Muslims as a whole could scarcely have helped his cause since such a sentiment clearly betrays an intention to discriminate on grounds of religious affiliation, a patently unconstitutional act, and relegates to an afterthought the consideration of national security.

The matter now moves to the Supreme Court for consideration. However, an initial hurdle for the governing administration is whether the case will be taken at all by that body. In a brilliant and well researched article, “Controlling Inherent Presidential Power: Providing a Framework for Judicial Review”, published in the Southern California Law Review, Professor Edward Chemerinsky of the De Paul University College of Law argues that “most suits to have a President’s act declared unconstitutional never reach the Supreme Court…” He references in support a number of instances among dozens where this has occurred, including disputes as to the authority of the President to impose wage price guidelines on government contractors and as to his authority to impose a 10% surcharge on most articles imported into the United States.

Even if the Supreme Court should decide to try the matter, however, the current jurisprudence is woefully unsettled. The author notes no fewer than four approaches to the question of whether the opening words of Article II of the Constitution to the effect that “the Executive Power shall be vested in a President of the United States of America’ are to be construed as vesting the President with powers not enumerated in the Article.

There are those, doubtless including Mr Trump himself, who hold fast to the interpretation that the President’s powers are untrammelled and that he is permitted to exercise authority not specifically granted by the Constitution, while others are, contrastingly, of the considered opinion that such plenary authority would be inconsistent with a Constitutional ethos of a government with restricted authority.

According to Professor Chemerinsky’s analysis, the approaches used by the lower Courts range from a clear denial of any inherent judicial power at all and that he must act pursuant to constitutional or statutory authority only, to the existence of a broad and substantial inherent authority, especially, interestingly enough in the current context, in the field of foreign affairs.

In accordance with the first perception, there is no room in US governance for a “presidential prerogative” equivalent to the “royal prerogative” claimed by British monarchs of yore and still claimed by some to extend to the local Governor General, itself an office created by Constitutional provision and thus inherently of limited authority. On this approach, if there is no condign constitutional provision authorizing the president’s action, then it is unconstitutional.

As for the broad authority in international relations approach that the lawyers for the President will doubtless be hewing towards in their arguments, this limits the narrow approach to internal matters only. In one 1936 decision, the judge wrote:

“ The two classes of powers (domestic and foreign are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution…is categorically true only in respect of our internal affairs…”

This approach reminds us “we are here dealing not with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations…”

Nonetheless, as if presaging the current dispute, after these dicta acknowledge that this power does not require as a basis for its exercise an act of Congress, it concludes ominously for the Trump administration:

“…but which, of course, like every other government power, must be exercised in subordination to the applicable provisions of the Constitution….”

The right to due process before any abrogation of an existing right is one such entrenched therein.

To be continued….

The Jeff Cumberbatch Column – Interesting Times

Posted on January 22, 2017 by David

Jeff Cumberbatch

We are undeniably living in interesting times. On Friday, we witnessed the inauguration of the forty-fifth president of the United States, Mr Donald Trump, who was able to overcome some missteps that would ordinarily prove fatal to others in most election campaigns and to win the requisite number of votes in the Electoral College, although not those of the majority of citizens. It is doubly ironic that this system was established by the Founding Fathers, principally to ensure a numerical balance between the Northern and Southern States by including certain individuals, identified by race, as less than entire persons, a factoid that would later come to resonate with the Trump campaign’s motif of exclusion.

According to Akhil Reed Amar, a noted Constitutional Law Scholar at Yale University: “At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count”.

Also on Tuesday of this week, the much-anticipated decision of the Supreme Court of the United Kingdom Wales on Brexit is scheduled for delivery. There, their Lordships have to decide whether the decision of England to leave the European Union should be purely an executive decision by the Government of the day in accordance with established principles of treaty making and unmaking that accord that power exclusively to the Executive or whether, in agreement with the opinion of the lower court, the decision is primarily one to be made by Parliament, especially since any withdrawal might impact negatively on the applicability of European laws that have become part of the British legal system.

Of course, it is open to their Lordships to hold, without doing violence to accepted constitutional theory, that the decision to withdraw from a treaty still remains within the exclusive remit of the Executive and that the relevant laws are not thereby necessarily affected but remain alive subject to later Parliamentary adoption or repeal. The inescapable reality is that the people whom the members of Parliament notionally represent have already signaled their intention to leave Europe. How significant a role this will play in a decision that promises to be an intriguing mixture of realpolitik and constitutional theory remains to be seen.

Interest is not solely confined to the extra-jurisdictional. Here, at home, a story that is gaining significant printed press inches and talk show minutes is the decision of the governing administration to dispose of its interest in the Barbados National Terminal Company Limited [BNTCL] to the Sol Group. This has evoked cries of unfair competition or, rather, its likelihood from a competing bidder and retail competitor, Rubis Inc. The regulation of fair competition in the jurisdiction falls to the Fair Trading Commission, an institution that this writer currently has the honour to chair and is therefore precluded, in the interest of equity, from further public comment at this time.

Of equal interest locally, is the re-emergence, within recent days, of no fewer than two political groupings that have declared an interest in contesting the 2018 general elections. What has struck me as most eldritch about this development so far, is that the debate surrounding one group has been concentrated on the identities of its presumptive candidates, while, contrastingly, the other “third party” has chosen not to reveal its potential candidates at all, doubtless a risky strategy in a jurisdiction where general elections are pejoratively referred to as beauty contests in both the literal and metaphorical senses of that term.

It is to be noted too that no matter how many parties contest an election in Barbados any new grouping is referred to as a “third party”; a tacit and grudging acceptance of the predominance two party system that has witnessed the interchange of governance for at least the last sixty years between the Barbados Labour Party [BLP] and the Democratic Labour Party [DLP]. The time may be auspicious for a third party, given the cocktail of the success of the unorthodox Trump campaign, the surprising results of relatively recent referenda in a number of jurisdictions and the closeness of the electoral result in 2013 that might have indicate either a popular indecisiveness between the two principal parties or a populist disenchantment with both. Film at eleven!

Condolences to the family and close friends of Adrian “Boo” Husbands who entered secondary school a few years after me. “Boo”, as he was familiarly known, once expressed to me some years ago, an interest in studying law, though he also confessed at the time that he did not expect to live to a ripe old age. We were most recently in contact last year when he invited me to a reunion of some old boys that was being organized. I could not make it as I was scheduled to be abroad. I did not know then that that would have been the last time I would have enjoyed his dry wit and elfin sense of humour.

Rest in peace, “Boo”. You have marked well.

The Jeff Cumberbatch Column – Things Fall Apart…

Posted on January 1, 2017 by David

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

“The best lack all conviction, while the worst

Are full of passionate intensity…” –The Second Coming –William Butler Yeats

Frequently, on the Facebook social medium, one will come across an invitation to title a random situation with the name of some film, song or other creative work. Were I invited to do the same with a book title for a global assessment of the year 2016, I would submit that of “Things Fall Apart” by Chinua Achebe. This work was part of my exposure to English Literature at secondary school, although I do not now recall the year. I choose this not because of the motif of the plot, although this itself (the conflict between tradition and a new culture) is not inapposite; but because of the seeming correlation and the direction in which the world seemed to be heading for the past twelve months.

More over, the title is likely, given its source, to find favour with those who believe that we are rapidly approaching the end time. The phrase comes from the poem by Yeats, “The Second Coming”, itself an event that has been prophesied to mark that occasion. According to Yeats,

“…Surely some revelation is at hand;

Surely the Second Coming is at hand.

The Second Coming!”

Mankind is, however, if nothing else, an animal of hope. And no matter how inauspicious things may seem, we have managed to transpose the hope wrought by the traditional story of Christmas into an integral aspect of the change of the Gregorian calendar from December 31 of one year into January 1 of the one following.

Hence, despite our apparently intractable adverse economic circumstances, the deplorable state of the roads; our significant loss of standing as state debtors; the damaging and unfortunate categorization of our nation as a tax haven; the uncertain outcomes of Brexit and the election of Donald Trump as President of the US and its implications for a settled world in future, we somehow expect, albeit illegitimately, since we have no reasonable basis for doing so, that 2017 will give rise to a brave new world of peace and prosperity.

…Mere anarchy is loosed upon the world

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Today, as we greet the first few hours of the week, month and year, it is worthwhile to contemplate what the months ahead portend for us personally, nationally and globally.

I had stated earlier that the human being is an animal of hope. He or she is, arguably no less, a political animal, and I use that epithet in its populist sense. For Barbadians, 2017 marks the final full year, constitutionally, of the current governing administration since next year, 2018, will be the fifth anniversary of the last general election in 2013.

And as is constitutionally provided by section 61(3) -“Parliament, unless sooner dissolved, shall continue for five years from the date of its first sitting after any dissolution and shall then stand dissolved”. Of course, under our system of governance, these considerations, as stated, do not preclude the Prime Minister from exercising his awesome power to advise the Governor General to dissolve Parliament at any time prior, thus clearing the way for a general election.

This colloquial “ringing of the bell”, whenever it occurs, is likely to result in a cavalcade of partisan campaigning inclusive of the usual promises and representations by all concerned to ensure electoral triumph. Much as it was in the US in the months leading up to October where, in spite of his alarming manifesto of xenophobia, intolerance and vain boasts of imprisoning his Democrat opponent that resonated with a plurality of states, Mr. Trump now finds it appropriate, thankfully, to recant from those very stances that served so significantly to ensure his success. We should hope for a more sincere electoral courtship in our circumstance whenever that fateful day arrives.

At the global level, we would wish too for a more equitable treatment of those nations with less geopolitical clout by those that are more substantially resourced in that area. The frequent changing of the goalposts as to the definition of a tax haven and a crude reluctance by some to recognize that one salient characteristic of these entities is their affinity for secrecy; a factor far more evident in and synonymous with well known larger jurisdictions- have led to an unwarranted labeling of Barbados as a tax haven with all of the disreputable connotations attached thereto. The struggle to correct this error that might only do further damage to our fragile economy should be national and not merely partisan.

The personal aspect should be particular to each of my readers and I should not be so presumptuous as to suggest how you should lead your lives during the coming year. Nevertheless, as we begin 2017, permit me to wish you good health , prosperity and freedom from distress during the months ahead. In any case or those of us of a certain age, the phenomenon of the apparent shortening of periods of time, whether owed to our slowing metabolisms, heartbeats and breathing rates or to the logarithmic scaling of time -that we perceive a period of time as the proportion of time we have already lived through, it should, hopefully, soon be time to wish you a blessed New Year again!

The Jeff Cumberbatch Column – The Symbolism of the Broken Trident

Posted on December 4, 2016 by David

Broken Trident

In relatively recent times, more individuals than one have expressed their consternation with the emblem of the broken trident in the national flag, and its representation in the recently revealed National Monument, claiming an association thereby with Satanism.

Given that there has been no general protest during the previous fifty years of its existence, and given that any depiction of Satan and therefore of whatever objects he may not may not carry is clearly a matter purely of artistic imagination and creative impression, this current outcry during the jubilee of our Independent status might be considered as premised exclusively on zealous excess and may perhaps be owed to the increased visibility of the national standard at this time.

As most of us have learnt, the broken trident signifies principally the delinking of Barbados from Great Britain, whose female personification was Britannia, which served as an emblem of British power. Some may recall the jingoistic boast at the height of Empire that “Britannia rules the waves…”. Britannia carries a three pronged fork or trident in most depictions; an implement that is also carried by Neptune, or his Greek counterpart, Poseidon.

The link of Barbados to the trident of Britannia has been emphasized time and again throughout our history, once finding pride of place on our colonial flag, on the colonial badge, on our coinage, and on our stamps. Any internet Google search for the images of “seal of the Colony of Barbados” will cogently reveal this association.

So far as the link to Satan is concerned, one historian’s answer to the question, “Why is the Devil often portrayed with a pitchfork?” on the website “Ask Historians” makes for intriguing reading.

According to the narrative, “most of the physical features of the modern image of the Devil developed through the mediaeval period as the Devil became more real to Christians as he began to stalk the earth in the minds of ecclesiastics”. He notes that “these physical features are not of Biblical representation”.

Since there was no text to provide guidance as to the appropriate representation, mediaevalists were constrained to revert to formalism– the way of interpreting literature or art that stresses the heavy or exclusive dominance of traditional standard images or motifs, perpetual coded formulas of representation and description. According to one mediaevalist, Norman Cantor, “the traditional standardized images and motifs are privileged and centered in this view of mediaeval visual and literary art while individual creativity and original discovery are marginalized or excluded altogether”.

He views this formalist approach as ideological –“ the great preponderance of images and motifs was inherited from Greco –Roman Classical art and literature or from the thought world of the Church Fathers…which in turn was a product of the interaction of Biblical ideas with the classical tradition”.

Given this thesis, it should be unsurprising that most depictions of Jesus and Mary are cast in their traditional purely Caucasian form and it might equally be considered prudent on the part of Islam to regard any man-made image or representation of the Prophet to be blasphemous.

Earliest 10^th century representations of the Devil depict him with a three-pronged pitchfork, herding souls away from Jesus and steering them into Hell.

According to one historian, Jeffrey Burton Russell, the Devil’s “pitchfork” derives in part from the ancient trident, such as that carried by Poseidon that symbolizes threefold power over the Earth air and sea [Greek mythology], in part from symbols of death, and in part from the instruments used in hell for the torture of the damned [ Biblical ideas].

Conversely, the anonymous author of the piece queries “if the devil were to be made to appear in the real world, why should not that image appear in the real world?”.

His thesis is that the Romans had a two-pronged pitchfork for light work but. in Northern Europe , where the soil was heavier and more clayey, the three-pronged pitchfork was developed in the early middle ages.

He reasons that farming communities grew up around the mediaeval abbeys, thus suffusing the daily existence of their inhabitants, the monastics, with the sights, sounds and smells of the peasantry and rural life. Pitchforks would have been a frequent sight in these environs.

Given that the pitchfork of the Devil first appeared in the second half of the early Middle Ages in the minds of ecclesiastical writers and artists; the monks and bishops, he queries whether these creative would not have more likely drawn their inspiration from the peasantry whom they saw daily than from Greek and Roman images of a millennium before.

Indeed, he compares the use of the fork by the Devil to winnow or shepherd away the souls of the ungodly with a passage from the Gospel of Matthew that employs the identical imagery from the opposite perspective-

“His winnowing fork is in His hand to clear His threshing floor and to gather His wheat into the barn; but He will burn up the chaff with unquenchable fire.”

According to the thesis of the author, in the portrayal of good and evil “good” is mainly associated with the rich who are thought of as pure and the determiners of what is good and what is evil. The “bad” is associated with all those others who were not similarly blessed to have been born wealthy and thus have to work for a living. Their habits were also seen as bad. According to accepted dogma, the ultimate symbols of bad or evil were hell and the Devil. Hence, according to his argument, the pitchfork used by the poor peasants became associated with evil because of its association with what the good in society considered “bad”.

This attractive argument, in my view, serves to refute the affirmation that the trident on our flag is to be associated with Devil worship as some have posited. In any case, the broken trident should logically suggest that we have weaned ourselves away from what the unbroken object is assumed to signify, in this case, Evil.

It is with some hesitation that I make this last point however, since the broken trident in our flag is supposed to denote a political advance on our former status in those days when the entire trident was an integral part of our landmarks. And yet we have seen it fit to retain the epitome of Britannia in the personages of Her Majesty, her heirs and assigns as our Head of state in perpetuity. One may well ask, “Is the trident really broken?”

The Jeff Cumberbatch Column – An Uncomfortable Unionism

Posted on November 20, 2016 by David

Jeff Cumberbatch – Columnist, Barbados Advocate

The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests –ILO Committee on Freedom of Association (1985)

Truth to tell, despite its inarguable significance for freedom of association for trade union purposes, no one likes a strike. Not the employer who sees the smooth operation of its business frustrated; not the general public whose lives are invariably disrupted; and not even the workers themselves who might lose valuable income as a consequence of their not being ready and willing to provide service as contracted –the sine qua non (essential condition) of their entitlement to wages. Too besides, if the employer is the state, strike action and the inevitable disruption to public services might be perceived as being to the electoral disadvantage of the governing administration and a partisan attempt by the workers’ organization involved to ensure its demise.

Despite, or perhaps because of, its ability to disrupt normal existence, the right to strike is jealously guarded by the labour union and is further protected, though not expressly, both by ratified international Convention and by local law which confers certain immunities and privileges on workers’ organizations that engage in industrial action if effected in contemplation or furtherance of an industrial dispute.

For example, a business owner cannot maintain an action in tort, as he may against other entities, against a union for interference with that trade or business. Indeed, section 7 (1) of the Trade Unions Act, Cap. 361 is clear in its provision-

“An action against a trade union, whether of workmen or employers, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court”.

Of course, the right to strike is not an absolute right, as both the principles of international labour law and some regional statutes have recognized. Hence, with certain established safeguards, the right may be limited in the essential services –those services whose interruption would endanger the life, personal safety or health of the whole or part of the population; in the public service -for those public servants exercising authority in the name of the state and in the event of an acute national emergency.

And some regional jurisdictions have established industrial courts or tribunals to resolve industrial disputes according to principles of law and thus to pre-empt the probability of strike action. In this regard, it does not require a rocket scientist or a law scholar to reason that the honourable Prime Minister, Mr Freundel Stuart, must have been contemplating a recourse along similar lines when he suggested last week that perhaps the time had come for us to reconsider our voluntarist system of industrial relations and, although he did not say it expressly, to imagine the juridification of the local employment relation.

The current disquiet on the local scene resulting from the action by the National Union of Public Workers clearly has the governing administration, to use an expression from the US, “more nervous than a long-tailed cat in a room full of rocking chairs”. With an increase in visitor arrivals anticipated for the celebration of our golden jubilee of Independence in less than a fortnight, any dislocation at Customs and Immigration engendered by the National Union of Public Workers [NUPW] should impact severely on the comfort of these individuals and is likely to have a dispiriting effect on their holiday experience. One Cabinet member has labeled the conduct of the NUPW as reckless and irresponsible” while the Prime Minister has condemned the organization’s instinctive resort to strike action without first attempting to engage in social dialogue on the matter.

The real issue has been however most clearly articulated by the General Secretary of the Barbados Workers’ Union, Ms Toni Moore, who stated yesterday that she had sought the reason for the decision to revert Mr McDowell and “to ascertain if there had been a breach of the ILO’s Convention which protects union leaders”. This identifies precisely the bone of contention between the parties that seems to be lost on most commentators on the issue.

It is not whether it is within the managerial prerogative of the employer to revert Mr McDowell. This is beyond dispute so long as there is no conflict with a contractual provision to the contrary. Rather, as I wrote two columns ago, it is whether the actions of the employer in this instance amount to an act of anti-union discrimination prohibited by Article 1 of the Right to Organize and Collective Bargaining Convention 1949, an instrument that Barbados ratified on May 8 1967. According the ILO’s Committee on Freedom of Association –

“One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full confidence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom”

The dispute has not so far been joined in the public domain on this narrow issue. I submit, however, that this is the heart of the matter and that while some are content to exercise their partisan preconceptions as to the patriotism, moral legitimacy or otherwise of the NUPW action and its likely consequences for the governing administration, a more focused debate should be on whether the reversion of Mr McDowell did in fact constitute an act of anti-union discrimination.

The Jeff Cumberbatch Column – A Return to the Monarchy?

Posted on November 13, 2016 by David

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Jeff Cumberbatch – Columnist, Barbados Advocate

“The best argument against democracy is a five-minute conversation with the average voter…” –Winston Churchill.

“Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time…” –Winston Churchill

The story is that the deliberations of the US Constitutional Convention of 1787 were held in strict secrecy. Consequently, curious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. Their answer was soon provided. A Mrs. Powel of Philadelphia asked Benjamin Franklin on his exit, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”

As did most of my friends by their own admission, I spent last Wednesday morning in a funk of astonishment and disbelief at the events that had transpired in the US a few hours before. We were trying, as Maureen Dowd put it in her opinion piece in the New York Times last Wednesday, to “absorb the impossible”. Despite the geographical inexactitude and patent vagueness of his campaign slogan to “Make America Great Again”; despite his petulance and clear unease at articulating clearly any policy position; despite his clear contempt for those of a race or culture different from his own; despite his abandonment by the Republican establishment after flagrant displays of an offensive misogyny and mimicry of the disabled; and despite the unanimous certainty of the pre-election polls to the contrary, Donald J Trump had secured the mandate of the people (via the Electoral College) to become the next President of the United States of America.

And yet, on further reflection, it is not that difficult to explain this alarming event, although no single factor will suffice. For one, there is the vagary of democracy itself. Churchill’s dictum in the epigraph might seem uncharitable and perhaps even out of sync with our current constitutional ethos, but it may serve eloquently to explain in part some surprising results in recent democratic decisions such as the BREXIT referendum in the UK, the rejection of the peace accord in Colombia, the Trump victory and perhaps some others besides. And polls are mostly unable to predict these types of results because the actuality is that very few responders want to be perceived as being out of step with the prevailing view. I can count, on fewer than four fingers, the number of individuals who, to my knowledge, contemplated that Trump would have won this contest and even so, this was mostly because they hated Mrs. Hillary Clinton more.

This point as to the unthinking nature of voters should not be understated. In an interesting column published online in Foreign Policy, Jason Brennan first posits inarguably that “democracy is supposed to enact the will of the people” and then queries “but what if the people have no clue what they’re doing?” His thesis is that most voters are ignorant or misinformed because the costs to them of acquiring political information greatly exceed the potential benefits. He likens the democratic exercise to a professor telling her hypothetical class of 210 million that in their final exam no individual will receive his or her personal grade but that everyone will get the same grade. In that case, he argues, no one would bother to study and the common grade would be an “F”. He concludes therefore, “…voting is more like doing the wave at a sports game than it is like choosing policy.”

For some, it might have been precisely this Brennanesque stance of belittling the native intelligence of the ordinary voter that led ineluctably to the Trump triumph. One writer has argued persuasively that the choice made on Tuesday last might have been less of a instinctual default option and more of an “intelligent” choice. For him, anger and uncertainty at the inexorable march of globalization and technology had reached such a pitch that many voters were ready for disruption [of the status quo] at any cost.

“Enough of elites; enough of experts; enough of the status quo; enough of the politically correct; enough of the liberal intelligentsia and cultural overlords with their predominant place in the media; enough of the financial wizards who brought the 2008 meltdown and stagnant incomes and jobs disappearing offshore” is how Roger Cohen expresses their collective frustration in the New York Times, a worldview that could find some commonality in Trump’s sloganeering and would be antithetical rather to the Clinton campaign where the candidate herself was perceived as the epitome of this perverse state of affairs.

Indeed, more than a few commentators in recent days have focused their readership’s attention on the unsuitability of Mrs. Clinton as the worthiest Democratic opponent for Mr. Trump. Not-so- easily-dismissed suspicions about the moral authenticity of the process that brought her the nomination as the candidate of the Democratic Party; her coziness with “them” (the financial and social establishment) and a regrettable sense of entitlement that, perhaps unfairly, suggested that she should be free from popular and legal scrutiny –what Maureen Dowd calls a “miasma of financial and ethical cheesiness”; would scarcely have endeared Mrs. Clinton to the alienated rural voter in the counties and states of Middle America.

Nor should we discount lightly the bigotry that might have induced apoplexy should a female be allowed to follow a blackish individual into the White House and that would have felt itself threatened by the inexorable “browning” of a formerly whitish USA.

Today’s headline to this column poses a question for further debate. It is part of a broader inquiry as to what type of President is Trump likely to be. Given his flip-flopping with the truth during his campaign, it would be mere conjecture to base this conclusion purely on his utterances then. Will he be the candidate who claims that he knows more about ISIS than even the generals on the Joint Chiefs of Staff and thus be the individual defender of the “Free World” or will the demands and stresses of the office, so clearly evident in the frosting of the crowns of both Presidents Clinton and Obama during their respective tenures, humble him sufficiently to tone down his inflammatory exclusionist rhetoric?

The defining characteristic of the republican system of government as distinct from that of the monarchical that the US would have successfully rebelled against in 1776, is its checks and balances inherent in the constitutional construct of the separation of powers to ensure that no one branch impinges on the exclusive preserve of the other. Trump’s campaign discourse made a mockery of this principle with his frequent references as to what “I” would do. There was no correspondingly frequent mention of “my administration”.

Now, with the Republicans controlling both the Senate and Congress, and with a President Trump, emboldened by his electoral mandate, entitled to reject the Republican establishment as a consequence of their earlier treatment causing him to do it “all by himself”, the circumstances are ideal for a return to a quasi-monarchical system of “Trumpism”.

The Jeff Cumberbatch Column – Current Issues in Local Employment Relations I

Posted on October 30, 2016 by David

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

The Barbadian employee and, in some cases, his or her representative union, might agree with the second part of the opening couplet of Charles Dickens’ A Tale of Two Cities” that these are indeed “the worst of times” or, if they are not, they do come pretty close. Last week, we heard from no less a personality than the Honourable Labour Minister that some local employers are ignoring the applicable labour laws, especially those pertaining to the rights of the employee under the relatively recently enacted Employment Rights Act and, perhaps more chilling, some of the provisions under the Safety And Health at Work Act.

And that is not all. ON the collective front, the Barbados Union of Teachers is clearly in a quandary as to the appropriate strategy to be employed (!) in order to establish its claim for some of its members to be reimbursed those wages that were abated by the employer, the Ministry of Education earlier this year in response to the absence of those teachers from their duties while engaging in union activity.

Having persuaded itself that it had the law on its side since it was not at the time engaging in industrial action, the BUT has, seemingly, now been disabused of that idea and has chosen rather to resort to the tried and tested method, enabled by its freedom of association, of industrial action so as to press its suit. I suppose that this initiative is consonant with the famous advice once given to lawyers by Carl Sandburg, a US poet and prize-winning editor, to the following effect – “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”. The union’s chosen recourse in this instance is clear.

The Barbados Workers Union, on the other hand, has publicly avowed its displeasure with the use by some local employers of fixed term contracts so as to avoid their statutory obligations to those employees who might otherwise acquire certain rights by a period of continuous service. Of course, there is nothing inherently wrong with the concept of the fixed term contract and its use may be legitimately required in those cases where the worker is merely replacing an employee who is temporarily absent from work or where there is a temporary surge in work volume, though not expected to last beyond a foreseeable period, thus engendering a need for the non-permanent engagement of workers.

The rub comes, however, where the employee is consistently rehired on a fixed-term contract, seemingly in perpetuity, thus enabling the employer to avoid, or even evade in some cases, its statutory obligations while the employee suffers the consequent insecurity of tenure and is unable to claim the continuity of employment necessary to become entitled to basic statutory entitlements.

It bears reminder that the International Labour Organization frowns on this practice and, in its Recommendation 166. it stipulates that “adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation”.

One of the safeguards recommended is limiting recourse to the circumstances in which employers may utilize fixed term contracts; and that of deeming contracts for a specified period to be contracts of indefinite duration especially when renewed on more occasions than one for other than prescribed reasons.

As I note in a piece I have prepared for future publication, Montserrat only of the regional jurisdictions has legislated in accordance with this provision. The point to be made here is that since the use of the fixed term contract may be legitimate and even obligatory in some scenarios, common sense may warrant a concentration on the prevention of abuse of these contracts rather than their complete prohibition.

Again, the popularity of social media, wherein participants are not at all reluctant to share the details of their meals, their views as to the intellectual capacity or, more frequently, incapacity of public figures and even their fidelity to religious doctrine was destined eventually to intersect with the workplace. It did so recently in the notorious dismissal of an employee miffed at the requirement to participate in a safety drill and who, we suspect, would scarcely be consoled by the fact that her post quickly went viral, thereby transforming her into a poster girl for all those workers who might be afraid of sharing publicly their disaffection with the conditions at their workplaces.

This matter cries out for the mandatory drafting of a workplace social media policy by the employer -reasonable notice of which should be provided to each employee. This would serve to clarify what does or does not constitute acceptable conduct in this context and should provide for progressive discipline in the event of an infraction. It would also include matters such as Internet and social media access on work computers and at work in general; restrictions as to the content of any posts by the employee and prohibitions on the identification of the organization with the personal views of the worker on socially sensitive issues such as partisan politics and religion.

Enough for one day. I propose to continue this discourse next week with an examination of the response of the local workers organizations to the official outsourcing of work traditionally performed by public employees to private contractors and of the international labour law perspective on the reversion to his substantive post in the public service of the current president of the National Union of Public Workers.

The Jefferson Cumberbatch Column – Legal Theory and Practical Realities

Posted on October 23, 2016 by David

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

It might bear reminder while commenting on the topic at caption, that its origin carries some relevance to Barbados’ Independence, especially as we are in the midst of preparations to celebrate the fiftieth anniversary of its attainment. It should be recalled that this status was achieved as a matter of law by an Order-in-Council of Her Majesty, The Barbados Independence Order, made under the powers vested in her by section 5 of the Barbados Independence Act 1966, an Act of the British parliament, and that our supreme law, the Constitution that principally regulates our system of governance, is no more than part of the Schedule to that Order-in-Council.

From time to time, there have been plaintive calls to repatriate or, more accurately, to “patriate”, the Constitution by an Act of the local legislature. However, given the limited electoral and now, minimal economic, advantage to be gained by this initiative, it is scarcely surprising that no effort has been made in this regard by any of our governing administrations over the past half century. In any event, the notion that our grant of sovereignty might be rescinded by a UK parliamentary repeal of the Barbados Independence Act and, consequently, all the subsidiary legislation that flows from it, including the Barbados Independence Order, is rather far-fetched.

In a celebrated decision of the 1930s, British Coal Corporation v R., the Judicial Committee of the Privy Council was charged with deciding whether the Statute of Westminster that effectively granted independence to Canada by removing any legislative incompetence on its Parliament, permitted Canada to prohibit appeals to the JCPC. In his judgment, while noting that the Parliament of the United Kingdom could, if it wished, repeal all or part of the Statute of Westminster, enabling it to reassert its authority over Canadian affairs at any time, Lord Sankey noted that this was a matter of “theory and has no relation to realities. In truth Canada is in enjoyment of the full scope of self-government.” One should expect that an identical ruling would apply to the local circumstance. I was reminded of these hoary dicta by two items of news during the week just past.

First, there was the issue where the Jamaica government sought to have officials of the University of the West Indies [UWI] appear before the Public Administration and Appropriations Committee [PAAC] of the Jamaica Parliament in accordance with the rules of that body to give an account of its disbursement of funds provided by the Jamaica government and supplied by its taxpayers.

Now, it might be one of the better-kept secrets of regional affairs that UWI is not in strict law the property of, or directly answerable to, any single government of the region. It is equally true that the governments of the region and hence their taxpayers, are collectively responsible or the funding of the University through the appropriate Committee.

The University was established by Royal Charter, an instrument that provides, inter alia, for its mode of governance, obligations and the manner of the resolution of its internal disputes. As the Jamaica Court of Appeal itself recognized in Dr Matt Myrie v UWI in a 2008 judgment, denying the claimant’s application for an injunction to restrain the University from barring him from taking an examination, “the UWI’s Charter having provided for a Visitor, the Visitor is the authority which has the jurisdiction to decide disputes arising under the domestic law of the institution. That jurisdiction is defined in the common law and the courts decline jurisdiction in such circumstances. His application to this Court is therefore inappropriate.”

It may be taken that the University Registrar would have been acting on sound legal advice therefore when he politely refused the request from the Jamaica Parliament on the basis that the University was “a public autonomous regional educational institution which serves seventeen countries in the Caribbean…” Going on to refer to the manner of establishment of the University, he asserted the clear distinction between the University “and other agencies of your Ministry”, citing in support an opinion of the Attorney General’s Chambers.

Nevertheless, he recognized some degree of obligation owed to Jamaica “as a contributing country that is entitled to know how its government’s subventions were utilized” and he recommended that the information sought might be obtained through the auspices of the country representative on the Finance & General Purposes Committee of the University.

So far as the letter of the Registrar is concerned, it is seemingly based on sound legal theory. The UWI is not funded by Jamaica solely, and that state is ably represented on the highest bursarial body of the institution. That representative should have access to the University’s records of receipt and disbursement of funds and is obligated to report to the Cabinet, of which he or she is a part, on these matters concerning the University. At least in theory.

Nonetheless, Lord Sankey’s dicta return to the forefront of the discussion – Does this arguably sound theory accord with the practical reality at a time of economic stringency throughout the region, when University education is increasingly being regarded as a privilege for a limited few only, and when, as the Jamaican authorities contended, the amount of funds allocated to UWI by it exceeds similar disbursements to no fewer than two other ministries?

Moreover, it seems poor politics for the University to get on the wrong side of one of its major contributors at this time. The practical realities therefore demanded that the University should comply with the request, no matter what the strict law required.

Recognizing this, although I am not sure if he was aware of Lord Sankey’s dicta of nearly eighty years ago, Sir Hilary Beckles, the Vice-Chancellor of the University, sought to pour oil on the troubled waters and duly apologized for what he termed the “misunderstanding” and its consequences. In his letter, he rightly asserted the keenness and willingness of the UWI as a regional institution to appear before the PAAC of the Jamaican Parliament and tactfully affirmed “the well established procedure for the UWI Bursar to make such submissions to all governments on behalf of all campuses”.

The second circumstance concerns the news reported in today’s [Saturday] Barbados Advocate that the Antiguan and Barbuda government is giving serious consideration to calling off its proposed and constitutionally required referendum on whether it should accede to the appellate jurisdiction of the Caribbean Court of Justice. This is owed to fears that it may not attain the required two-thirds majority to do so in that plebiscite.

Again, the legal theory is there. As an independent regional jurisdiction, with undisputed sovereignty over its legislative and executive affairs, there would appear to be little justification for Antigua and Barbuda to continue to cede judicial sovereignty and to continue to loiter on the doorsteps of the JCPC, when it has available to it its own regional court to which it is already financially committed.

But it bears reminder that the practical realities of partisan regional politics must be factored into the equation. And few Opposition parties in the region would resist the opportunity to see the governing administration suffer a popular defeat of any kind, even if that defeat inures to the adoption of a clearly irrational and risible position. Partisan politics, it seems, thrives on the tenet that whatever embarrasses the other side is good for us… and for the country. Alas!

The Jefferson Cumberbatch Column – Theatre of the Absurd

Posted on October 16, 2016 by David

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

Some of the local events of the past fortnight lend cogent validity to the thesis conveyed by the title to this piece. A cashier at a retail establishment posts, on social media, a fulsome rant against the unwelcome interruption of her cosmetic efforts by a safety drill at her workplace on social media, and then expresses surprise at its “going viral” in this bored and easily distracted society, resulting in the loss of both her employment and, according to a report in another section of the press, her boyfriend.

For professional and other reasons, I shall refrain from comment in this space on whether the termination of her employment was lawful, although as an employee with allegedly five years’ service, she would be entitled to protection against a wrongful dismissal in breach of her contract of employment and also against an unfair dismissal contrary to the provisions of the Employment Rights Act. It bears reminder, however, that the determination of whether a dismissal is fair or not does not depend on a popular categorization, but on matters such as the validity of the reason for termination, whether a fair procedure was employed in ascertainment of the facts of the matter and whether it was reasonable or not unreasonable for the employer to dismiss that employee for that reason. In fine, it is a rather complex matter and there would be little to be gained by attempting to try the issue in this column outside the Tribunal or the court.

We had recently too the spectacle of a couple that espouses a different religion from the local mainstream being charged criminally for purporting to educate their children at home and not in the state system because, according to them, a home based education would be better for the children’s spiritual and social development. Given that the law already provides for the homeschooling of children under certain circumstances; the relatively recent establishment of some religion-based educational institutions and the numerous charges of anomie leveled at the public school system in Barbados, the charge amounts to little more than the arguably technical one of failing to secure official permission for their initiative.

Once again, my comment on this matter, both with reference to the criminal charge and the subsequent attempt by the Child Care Board to make the children wards of the Court is precluded by their being sub judice at the moment, but I should think that one critical issue here would be the comparative scholastic level of the development of the children in relation to their peers. I have not read of this consideration being aired.

That was not all. An evangelical pastor counsels that the congregation of young people on what are popularly referred to as “blocks” should be outlawed, purely, it appears, because of a presumption that these gatherings are an inarguable prelude to criminal activity. Never mind that these assemblies are no less lawful than those in the church itself –since both are based on the exercise of the constitutionally guaranteed freedoms of assembly and association- for her, they comprise nothing but unemployed gadabouts and hence should be criminalized. Unsurprisingly, public support for her call has not been substantial and official law enforcement has not been overly enthusiastic in its reaction, calling instead on the pastor to provide a blueprint or a strategic plan for effecting her suggestion.

Any drama in the local theatre of the absurd would be incomplete without the interposition of the political element. And this week, the spectre of privatization again loomed large in a seeming reprise of the 2013 general election campaign when this issue reached its partisan zenith with the DLP advertisement for the likely consequences for pensioners of a hypothetically privatized Transport Board emerging as the most telling of the entire campaign. Indeed so much so, that many, to this day, still perceive it as most contributory to the eventual narrow DLP victory at the polls.

It was not the Transport Board however that was to be the subject of this week’s announcement of a public sector/private sector partnership, but rather the Sanitation Service Authority, whereby it was announced that four private sector establishments have been contracted to assist the Authority in the collection of garbage.

This venture did not sit well with some; one political commentator saw it as “ shameful act of political betrayal” and “a scandal of massive proportions that should lead to strident and decisive calls for the removal of the governing administration from office…”. On the other hand, the National Union of Public Workers, the most representative organization of the employees of the Authority. expressed disgust at what it saw as flagrant disrespect by the administration for the social dialogue process of good industrial relations practice and promised a proportionate response.

Naturally, those taxpayer-citizens with no political axe to grind were thankful for the attempt to clean up their surroundings, even though more than a few might have wondered if this were the most effective use of their taxes and at the absence of prior notification that such a move was even being contemplated.

The Jefferson Cumberbatch Column – In Defence of “irregardless” and “I’m good”-A book Review

Posted on October 9, 2016 by David

As many of the readers of this column might have guessed, and would probably expect, my professional reading habits range from the closely argued judicial decision to the more conventional legal literature of the subject monographs, digests, encyclopaedias, and scholarly articles. On more occasions than a few, however, I am inclined to venture outside my area of training and to delve into literature that would be more relevant to other fields of study. One book that I am currently reading is the highly informative and irreverently entertaining Bad English-A History of Linguistic Aggravation by Ammon Shea, who is listed on the dust cover as author of “Reading the OED”.

In this effort, Shea declares that his aim is “to examine a number of the issues of the issues commonly thought of as mistakes in the English Language and to see how these mistaken forms have been used over the past five hundred years in ways both eloquent and awkward. He writes that it is presented as “a history of the things that we think are correct, the reasons why we think them so, and a celebration of the marvellously flexible language that has allowed room for such myriad forms”.

As he notes, the criticisms of the English language over the years have been a familiar litany-it is being weakened by foreign imports; young people are debasing it with slang; ruinous Americanisation and improper grammar that will lead to an inability to communicate beyond the most basic level of grunts”. In spite of all these indignities, however, Shea posits that the language continues to thrive and grow in most magnificent fashion.

These criticisms do not fundamentally differ in kind from those which exist locally in respect of the use of English. Not that we do not have the self-acclaimed purists who are quick to seize upon every perceived howler by a writer, announcer or public figure, but we are also forced to endure the carpings of those who would prefer not to hear the nation language being used at all except in socially forgivable circumstances such as calypso lyrics, advertisements or in jest.

In his book, Shea purports to debunk some of the common assumptions surrounding what is or is not good English. For instance, is there a word such as “irregardless”, described in a 1947 work by Frank Colby, “The Practical Handbook of Proper English” as a “nonsensical and spurious word”? Most who consider themselves learned would scoff at such usage, and the spellcheck on my laptop is green with outrage, but Shea opines that the word probably started life as a humorous combination of “irrespective” and “regardless” and cites its use in a late eighteenth century poem published in the Charleston City Gazette-

But Death, irregardless of tenderest ties,

Resolved the good Betty, at length, to breathe…

As to the traditional criticism that “irregardless” is not a word, Shea considers this sentiment to have no greater chance of success than “if you stepped into traffic and yelled “ That is not a car” in the hopes of not being run over”. After all, he reasons, it has all the necessary components of a word-it is a series of letters arranged in a specific order, is frequently used in either speech or writing and indicates a commonly used meaning.

The essential difficulty with irregardless is the superfluous prefix “ir”. After all, the suffix “less” should suffice to show a lack of regard. However, in answer to this, Shea argues that the superfluous prefix may also be found in “habitable” and “inhabitable”; “personate” and “impersonate”; “valuable”; and “invaluable”; and “flammable” and “inflammable”, each pair of which has an identical meaning Indeed, as he notes, the last example might have been the cause of far more dismay, given that many people are inclined to think that the use of the prefix means that something so described may not be set alight or is fireproof, which is the exact opposite of what it means!

I’m good

In spite of the purist insistence that one should say rather “ I am well”, in response to an enquiry after one’s health, the expression “I’m good” appears to have become part of the English and, if one is to judge from the perfunctory greetings on the popular “Down to Brass Tacks” call-in programme, local idiom.

The classical argument here is that “good” is an adjective and a description of how you are (health-wise) in response to such an inquiry, should employ an adverb such as “well”. Of course, the use of “good”would not be amiss if the choice were between “good” and “bad” as in a degree of probity or state of mind.

Nevertheless, as Shea notes, some verbs (“copulative or linking” verbs such as the verb to be) should sometimes be followed by an adjective-e.g. “I am irritated” rather than “I am irritatedly” and “ You are annoying rather than “You are annoyingly”. He is of the view that the use of “good” is criticised rather because it is thought to be the wrong adjective for describing the state of one’s health and that “well”, which is an adverb, as well as an adjective, is preferable.

Shea concedes that this proposition is at least arguable, though not the one that asserts that “good” is improper in all cases where it follows a verb. This diktat has not been always followed, certainly not in the local modern-speak,not by James Brown who proclaimed to the world in 1965 – “I feel good…,”and not at all by NFL football or EPL soccer coaches, who inevitably claim after a victory, that “the boys done good”.

In memoriam-

I should wish today to convey sincere sentiments of condolence to the friends, family and acquaintances of Miss Beverly Alleyne, who was afflicted with the singular misfortune of having to teach me the rudiments of the French language during my years in the Lower School during the early 1970s, and who shuffled off this mortal coil last Sunday.

Miss Alleyne was the epitome of serenity, exuding an air of being at peace and displaying a mastery of the subject matter with a wry smile that was like a magnet to us prepubescent boys. The fact that it was widely known that she had wholly committed her life to God served only to add to her appeal.

I did not ever encounter her again after I left school, but I sense that she would have followed the public exploits of each of her pupils with interest and pride. She was like that. May she rest in peace?

The Jefferson Cumberbatch Column – On Weather Emergency Management

Posted on October 2, 2016 by David

At his best, man is the noblest of all animals; separated from law and justice, he is the worst –Aristotle.

Former Attorney General disagrees that laws are needed to force businesses to comply with shutdown order issued by the DEM.

Former Attorney General disagrees with current AG Brathwaite that laws are needed to force businesses to comply with shutdown order issued by the DEM.

Unlike many in Barbados and Trinidad & Tobago, who ascribe their frequent near misses from hurricanes to divine intervention or seek to ascribe a nationality to God that tallies with theirs, my unlearned view inclines rather to the thesis that these countries lie outside the presumed “hurricane belt” and that what might frequently appear to be contrived diversions from hypothetical paths are in fact consistent with the traditional directions of these phenomena.

Of course, this does not create a total immunity, given the frequency and magnitude of these events, although it may ensure that any “hit” is akin to a deflection rather than directly off the meat of the bat, if you will excuse the cricketing analogy. Thus, it is my understanding that the hurricane that is still spoken about with awe locally, the one named Janet in 1955, for all the death, damage and dislocation it caused, was not a direct hit but rather had passed much to the south of the island.

In this context therefore, we should never leave ourselves unprepared for such another such eventuality and, fortunately, it has become almost cultural for locals to store an adequate supply of water and to purchase, albeit at the eleventh hour, enough non-perishable foodstuff to last during any enforced period of restriction to their homes as a result of the passage of the storm.

Further, the state, as part of its constitutional responsibility has established an advisory body of high-powered officials to coordinate the public management of such emergencies. We are thus well organized as a nation to confront any likely danger.

However, in light of the actuality that forecasting the weather is scarcely a precise endeavour, there are likely to be circumstances when, in the interests of public safety, the authorities will be prone to over-caution and to prepare for the worst-case scenario through preventive measures that entail restriction of the freedoms of citizens to act as they might please. Invariably, when the worst case does not eventuate, instead of gratitude, there is no shortage of what those football fans in the US would call “Monday morning quarterbacking”, (and what we might call in these parts “batting from the pavilion) –whereby, with the aid of hindsight, some individuals seek to pillory, to various degrees, both the meteorological forecasts and the official state action that had been taken in good faith with a view to ensuring the public safety.

The extreme state action taken in this context is an island-wide or national shutdown, purportedly regulated by a policy document, impressively titled “Policy Framework and Standard Operating Procedures for the Systematic National Shutdown & Reactivation of Barbados.” It declares itself as formulated to provide for an orderly shutdown and reactivation of the country following a severe weather, tropical storm or hurricane WARNING (sic) issued by the Barbados Meteorological Service after collaboration with the Department of Emergency Management.

In spite of its significance however, the document trusts rather to ethical suasion for the enforcement of its provisions rather than to the rule of law, with the result that some of its provisions may easily be ignored without legal sanction. Indeed, it is by now notorious that some businesses elected to open their establishments on Wednesday last, much to the chagrin of those state officials who bear ultimate formal responsibility for the operation of the national shutdown.

In their defence, the document, perhaps owing to its essentially collaborative nature is not the most happily drafted piece of regulation one will ever encounter. For example, after expressly stipulating that “…On the issue of the National Shutdown Instruction, private sector entities/companies shall close their operation…” taking certain stated matters into account, it then proceeds to catalogue a number of private sector entities “which provide essential emergency services to the general public in times of emergencies” without any further positive or negative provision in that regard.

If it were to be subject to the traditional rules of interpretation, one would be tempted here to apply the principle of construction “inclusio unius est exclusio alterius” –the inclusion of one in a list implies the exclusion of another that might have been included therein, but is not- and to argue accordingly that those entities not mentioned should not open at all during the shutdown, presumably since they do not supply essential emergency services, while those that are listed and do supply such services are entitled to remain open.

A Barbados Advocate editorial on Friday sought to treat some of the thornier employment relation issues that are likely to arise for those workers who are called out to the workplace during a national shutdown. It is further understood that some employers arranged transportation for some of these workers, thereby creating the legal scenario that the employee is to be taken as having begun work from the time he or she boarded the designated vehicle and was therefore immediately owed a duty of care in respect of their health and safety by the employer.

In another section of the press today (Saturday) the general secretary of the Barbados Workers’ Union, Ms Toni Moore, accused some businesses of focusing solely on their bottom lime, which, with all respect is, within the limits of the law, the raison d’être of free enterprise.

Thing is, there is no current applicable law in force against what occurred on Wednesday, and while there may be some merit in an assertion that there is no law to govern commonsense and ethical behaviour, law is nevertheless the basis on which our society is governed and may be the only language that some will understand.

The Jefferson Cumberbatch Column – The Citizen’s Arrest

Posted on September 25, 2016 by David

A Barbadian man “pounced on a man he claimed had assaulted his (the arrester’s) daughter and held him in a headlock until police arrived.” – Jeff Cumberbatch

Society is partly organized along a number of rigidly enforced lines. For instance, certain constitutional powers are jealously guarded and reserved for particular bodies only. Thus, the policymaking power is entrusted to the Cabinet solely; the legislative power to Parliament and the Governor General acting as Her Majesty’s representative; and the judicial power to those who have been so appointed according to law.

However, there may be some exception to this assignation of roles in some respects. So that while the constitutional deprivation of liberty of the citizen on a criminal charge is reserved to the courts of the land, it is possible to resolve a civil dispute by alternative means of resolution such as conciliation, mediation and arbitration.

Likewise, while the power of arrest may be legally conferred by statute on the police, it is generally accepted that the common law also empowers the citizen sometimes to restrain the freedom of movement and personal liberty of another in certain circumstances without any insult to the detainee’s constitutional rights in either respect.

Hence, while section 21(1) of the Constitution provides that “No person shall be deprived of his freedom of movement, that is to say, the right to move freely throughout Barbados…”, section 21 (2) qualifies this to the extent that “…any restriction on a person’s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section”.

Similarly, section 13 (1) states that “No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases…” One of those cases authorized by law is to be located within s. 13 (1)(e), that is, “upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Barbados…”

So long as a detention is lawful, a private citizen may arrest an individual, although this entitlement is limited to the circumstance where the arrestee is in the act of committing an indictable offence or is reasonably suspected of having committed such an offence. The power of arrest upon reasonable suspicion that an individual is about to commit a criminal offence is confined to members of the police force solely.

So as to preclude a rampant vigilantism, other restrictions have been grafted onto the civilian power, one such being that the person making the arrest has reasonable grounds to believe that that the arrest is necessary to prevent the person being arrested from making off before an officer can assume responsibility for him or her.

What has engendered this unsolicited lecture on the citizen’s power of arrest, my readers may be asking. It is because on no fewer than three occasions within the past six months, twice in Antigua & Barbuda and most recently in Barbados last week, citizens have taken it upon themselves to effect the arrest of individuals whom they reasonably suspect of having committed criminal offences.

In March, in Antigua, a group of residents of a community held and tied up a man whom they alleged had attempted to attack a woman with a cutlass.

The Police spokesman cautioned rightly, “regardless of how much you think you may or would have assisted or prevented or averted a particular situation from happening, it must be something that, at the end of the day, can stand up in the court”.

This is sound advice, especially since the private citizen must also establish that the alleged offence was indeed committed, even if not by the arrested person himself or herself. In an old case, Sir Rufus Isaacs CJ commented that even if the offence “were not committed by (the arrested person) but by some person else, yet if (the citizen) hath probable causes to suspect (the arrested person) to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because (sic) if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people.”

And last Monday, in the same jurisdiction, a private citizen placed an air rifle to an individual’s head until the police arrived. He had suspected the arrested man of having stolen his motor vehicle. Again the police reaction was one of caution. One former Commissioner of Police there noted, perhaps in too broad a formulation, “every citizen has an obligation to assist in the apprehension or prevention of crime”, although he also issued a warning against the citizen’s arrest becoming “the order of the day”.

Barbados, it appears, has not been slow to have its own experience. Last Wednesday, it was reported in another section of the press that a local civilian pounced on a man he claimed had assaulted his (the arrester’s) daughter and held him in a headlock until police arrived.

There was no immediate comment from the local police spokesman on the matter, but the law here is identical to that in Antigua. Practically, any intervention may be accompanied by the use of reasonable and appropriate force and the arrested person must be given some idea of why he or she is being arrested. The arrester should, where possible, also effect it in the presence of witnesses so as to avoid later credible allegations of assault by the victim of the arrest. Moreover, the citizen is not entitled to carry out investigations into the offence while detaining the individual.

It seems to me that in the interest of good order, there is much force in an argument that the citizen’s power of arrest should be limited to those cases where the offence is being committed in plain sight only. However, the common law, as has been stated, is too firmly fixed to be overthrown by a side-wind (Lord Denning MR, 1951) and the citizen’s arrest will therefore remain a part of our law until removed by statute.

The Jeff Cumberbatch Column – Future Industrial Relations (ii)

Posted on September 11, 2016 by David

Jefferson Cumberbatch – Deputy Dean (Academic and Student Affairs) LL.B. (UWI); Leg Ed Cert; Attorney-at-Law, Chairman of the FTC

In the first installment of this extended essay, I advanced the view that even though many may have predicted the imminent demise of the workers’ organization, given the individualization of many of the floor of rights accorded to workers and the ongoing decline in union density or membership coupled with an anti-union ideology on the part of many employers, this suggestion may be deemed in the words of Mark Twain “grossly exaggerated”, in light of the relative weakness of individual enforceability of workers’ rights; a weakness that may be cured by collective action, and the current global recession that is necessitating a new war on want especially for those workers at the bottom of the economic ladder.

Another factor that is likely to impact at least moderately on the modern workers’ organization in future is that of increased globalization, once aptly termed by former Vice-Chancellor of the University of the West Indies, Professor Rex Nettleford, as “a modern expression for an old obscenity”.

Among the challenges for the labour movement presented by globalization and identified by Rolando Muck of Dublin City University in a 2010 article entitled Globalization and the Labour Movement: Challenges and Responses, are the informalization of labour, international migration, the routinization of labour practices and a sustained attempt by capital to make the world’s workers pay for the collapse of the neoliberal globalization model nearly a decade ago.

He suggests, drawing on the Dutch experience, that trade union strategies to confront these challenges ought to include “the organization of new workers hitherto unrepresented in the traditional union, a clear orientation towards social justice and a vigorous engagement in the battle of ideas in terms of a vision for an alternative social order”.

So far as labour migration is concerned, the Revised Treaty of Chaguaramas, the virtual Constitution of the nascent or stillborn Caribbean Single Market & Economy, already provides for lawful access to the labour market of member states of CARICOM for certain categories of workers from other member states.

While these workers will have legitimate access to the labour market, not all migrant workers will satisfy this criterion. How then is the workers’ organization to treat with these individuals? Some unions in other jurisdictions have sought to organize such workers on the basis that “workers are workers are workers” in order to preclude the possibility of employers using their dubious status to undercut remuneration and other conditions of employment for local workers.

It must be recognized however that sentiments of nationalism and nativism run deep and that the collision between these sentiments and humanity to strangers will ultimately determine the way forward for unions in this context. All this is, of course, subject to the legality of the employment in the first place, since it is in very limited circumstances only that any employment rights may be availed of under an illegal contract of employment.

Additionally, public and private sector retrenchments test union strength, although the provisions of the Employment Rights Act, as witnessed in its recent decision concerning the unfair dismissal of the workers from the National Conservation Commission do endow the representative union with some significant consultative rights in the entire process.

There are more than a few who espouse the view that the historical struggle between capital and labour is now outdated and that the time has come for a partnered approach between them directed towards an improvement of the economy through increased productivity.

According to one local writer, “capital, often invested at tremendous risk, has a legitimate right to a fair return on investment…Labour, a key factor of production, has an equally legitimate right to a fair living wage and should not be forced to sell itself at increasingly marginal rated while capital earns supernormal profits…” It is not difficult to agree with this, even though it must be conceded that the devil of an optimal solution here is in the details.

For instance, one vice-president of human and labour relations at Canadian Pacific Railroad suggests that if unions, traditionally perceived as representative of blue collar or public workers, are going to progress “they’ve got to make it compelling for people to belong to that group that has an affiliation and an image for them that they can aspire to and be a part of…”

And while some see a role for unions in future –“If trade unions are permanently weakened and labour’s share of economic growth continues to decline, this could undermine the moral legitimacy of liberal democracy’, argues one writer, while another refers to Canadian studies that indicated “around 50, 000 people a year join a union for the first time in Canada across the country”-, others are less sanguine. The chief economist with the Canadian Federation of Independent Business was minded to assert, “The workplace s evolving. We are seeing higher educated people, we’re seeing people who are more discerning with information and they are choosing that they ‘d much rather work in a non-unionized workplace than a unionized one. There is also a portion of unionized workers who would rather not be unionized. My question to the symposium then, as it is now to my readers appropriately altered, -Which of these contrasting positions better apply to Barbados?

Postscript.

Congratulations to my former English teacher, Canon Ivor Jones, on reaching the 100^th anniversary of his birth last week. Well lived, Sir!

The Jeff Cumberbatch Column – Time for a Change?

Posted on July 3, 2016 by David

“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…

The Jeff Cumberbatch Column – The Blackboard Jungle II

Posted on May 8, 2016 by David

Ronald Jones, Minister of Education

Pedro Shepherd, Barbados Union of Teachers (BUT)

Mary-anne Redman, BSTU

Joshua Y. Edwards: They don’t even know their multiplication tables.

Jim Murdock: Of course not. All they can multiply is themselves.

Joshua Y. Edwards: Well, how will they ever graduate?

Jim Murdock: Graduate? They just get to be 18. Then they throw them out to make room for more of the same kind. –Dialogue between teachers in the film “Blackboard Jungle” [1955]

The average Barbadian might be forgiven for thinking that the contemporary local classroom has indeed been transformed into a variety of a blackboard jungle befitting the 1955 film of the same name. What other conclusion may be drawn after hearing the words of Ms Mary-Anne Redman, president of the Barbados Secondary Teachers’ Union [BSTU] who recounted incidents of drug abuse, ineffective methods of discipline and an increasing prevalence of student misconduct in the nation’s schools?

Then, by midweek, the sister union of the BSTU, the BUT, had publicly “declared war” on the Minister and Ministry of Education, although most observers remain puzzled as to the “casus belli”. Ostensibly, it was alleged to be the failure/refusal of the Minister to meet with the Union, although his parliamentary secretary has refuted this assertion, citing occasions of no fewer than, as he termed it, “several times in the last few months”.

If this is not denied, it may be a case of the union falling victim to a condition that seems to afflict most Barbadians -that of needing to resort to the very highest official only in an organization in order to have a problem resolved. The bus service in your area is not running to schedule? Call Brass Tacks to have the minister himself come on air to explain this anomaly. Industrial dispute? Only the Prime Minister himself can settle this.

In my brief tenure as Chairman at the Fair Trading Commission, I have received written complaints on matters that would be far more quickly and more effectively resolved by the highly competent staff of the Commission than by myself. I imagine that the Minister himself must have been similarly approached. Thus, carrying its complaints to the Education Officers in the Ministry will not appease the union; no less prominent an individual than the minister himself will do. This “Referral to the Big Chief” tradition may be culturally ingrained.

It may also be, though, that industrial warfare by the BUT had commenced much earlier than on its official announcement this week. For example, the BUT has decided to hold meetings of its membership during school hours, and has challenged the Ministry’s right to record the absence from duty of some teachers, presumably for the purpose of assessing their entitlement to salary. While the ILO jurisprudence on freedom of association for trades union purposes does allow for access by a workers’ organization to its constituent members as part of its right to collective bargaining under Convention No. 98, it also holds that this “should not impair the efficient operation of the undertaking concerned”. It is at least arguable that a union meeting on a school day does serve to impair the efficient operation of the school system.

At the same time, it has also been held that a teacher’s salary does not accrue minute-by-minute, but rather day-by-day, so that there should be no official docking of salary unless the teacher is absent for the entire day or, at least, a substantial part of it.

More nettlesome, however, is the recent declaration by the BUT of its intention to institute a work-to-rule strategy through its members, whereby teachers will be on the job from 8:45am to 3pm only. While such action, I imagine, would be in strict accordance with their contractual obligations, this is also commonly regarded legally as a form of industrial action and a breach of contract if done with an improper motive.

Moreover, this strategy increases the potential for liability of the school authorities for any injury caused to a pupil that could have been avoided had there been adequate supervision. That a duty of care is owed to pupils who are known to arrive early or to leave late is scarcely in dispute, and the performance of this duty is traditionally delegated to the teaching staff. Nonetheless, it remains fundamentally the responsibility of the school itself and, if in the absence of performance of this function, reasonably avoidable injury result should to a child, the school would be held liable.

It does not end there. The minister himself, in a thinly veiled reference to the teaching fraternity/sorority, yesterday declared that in his opinion, flogging is not discipline, but amounts to a criminal assault on the child victim for which the perpetrator “should be taken before the courts and jailed if found guilty…”

As a matter of law, while Mr Jones’ premise that flogging constitutes an assault or strictly speaking, a battery, on the victim, is correct, there also exists the defence at common law of reasonable chastisement. In addition, this form of punishment is also permitted by statute in Barbados; so long as certain stipulated individuals carry it out.

Not that Barbados has any moral right to urge censorship of the practice at this stage. At the last Universal Periodic Review of the Human Rights Council in 2015, Barbados is listed among those states that rejected recommendations to prohibit corporal punishment in all settings, joining such paragons of human rights observance as Albania, Brunei, Somalia, Djibouti, and Saudi Arabia. We like it so!

See http://www.endcorporalpunishment.org/assets/pdfs/tb-upr-analyses/UPR%20analysis%20global, %20all%20states.pdf

The Jeff Cumberbatch Column – Political Tradition and the “next” Party

Posted on March 20, 2016 by David

“The two real political parties…are the Winners and the Losers. The people don’t acknowledge this. They claim membership in two imaginary parties, the Republicans and the Democrats, instead…” –Kurt Vonnegut

Permit me, dear reader, to explain the caption to this essay. The substance of today’s piece concerns the currently topical issue of the notion of establishment of a “third” political party to rival the entrenched Democratic Labour Party and Barbados Labour Party -although this ordinal inexactitude may be part of the political tradition itself.

In fact, Barbados has nearly always had more than two parties contesting general elections; indeed, in the 2013 election there were no fewer than five, including the Bajan Free Party, the New Barbados Kingdom Alliance and the People’s Democratic Congress in addition to the two major parties.

I do not suspect that most Barbadians are either ignorant of or forget this actuality but, in typical Bajan-speak, they consider a third party to be one that appears to stand a realistic chance of some success at the polls, even if that success does not directly translate into an electoral triumph or even more than one seat. Hence, while the People’s Democratic Congress [PDC], for example, was as equally unsuccessful in 2013 as the National Democratic Party [NDP] was in the 1994 elections, yet the popular perception was that the NDP was a “third” party while the PDC was not. Which might also say something about our classist-prone political analysis, but so it is.

Even the current national conversation makes specific reference to a third party, even though those others that contested the 2013 elections have now constructed themselves in to an alliance called the CUP, a veritable party of parties. It might be particularly relevant to the present point that I cannot now recall the meaning of that acronym.

Hence, it is not strictly accurate to speak of a “third” party per se; but rather of a “next” party, a term that will resonate with those familiar with the Barbadian vernacular.

It is noteworthy that the most frequently quoted local political scientists have, to a man, scoffed at the chances of a next party in the upcoming electoral fray, although I believe that that sentiment is based principally on a “win-a-majority-of-the seats-or-go-home” analysis, rather than that of such a party playing any role as a coalition partner to either of the two established parties that should secure fewer seats.

And yet, there is an inescapable and necessary logic to the idea of another political party in Barbados. In the first place, it is a patent exercise of the constitutionally guaranteed freedom of association and, perhaps, even that of freedom of expression. Indeed, these forms of freedom find specific joint expression in the Constitution of Trinidad & Tobago, where section 4 (e) guarantees “the right to join political parties and to express political views…” There is no reason to suspect that our constitutional freedom is dissimilar, even though not identically expressed.

Second, its existence might be considered a natural consequence of the 2013 result where, as a result of the popular indecision as to which party should form the next governing administration, we nearly had the phenomenon of a hung parliament with all of its messy constitutional implications. History will record that subsequent developments have now tempered somewhat the original closeness of that result.

Third, the results of a recently published poll, for what these are worth, appear to suggest that a significant number of those surveyed are not opposed to the idea of another party, although I do not now recall that its leader, whoever he or she might be, was listed among those that the respondents would prefer to see lead the next governing administration.

Further research reveals however that the question was never directly asked; the core objective in that regard being “to identify the individual most suited to lead Barbados, the DLP and the BLP”. The current absence of an identifiable figure as leader of a next partisan grouping would of course have conduced to the absence of any positive response, substantial or all, in his or her favour.

In spite of its logical necessity, however, the next party faces some rather substantial odds, given the local partisan political environment. One of these is the entire commercialization of modern electoral competition in Barbados. This pertains not only to the enormous costs of mounting a campaign that will need to be funded by sympathetic patrons with rather deep pockets, but also the relatively recent phenomenon of some electors placing a value in money or money’s worth upon their individual franchise, a practice that might have become too entrenched to be displaced anytime soon. This, too, would place a significant financial barrier on the electoral viability of any new organization.

These monetary considerations apart, the new party will face, as would equally the established ones, the difficulty of persuading a cynical electorate of the earnestness of its manifesto representations. Given the patent absence of trust and confidence that appears currently to subsist between the political organization and the public, with almost every policy measure now evoking populist suspicions of a less than ethical intendment, it is difficult to imagine that an identical association of individuals will be any more convincing in its proposed policy objectives.

In light of the above, it may reasonably be concluded therefore that while the interests of democratic choice requires, nay, demands, the institution of a credible next party, it appears also that its formation and participation in the next general election do not guarantee it an automatic passport to the seat of government or even to the balance of power by its candidates wining a sufficient number of or, indeed any, parliamentary seats. It must be prepared for the long haul. It must have an attractive and credible message and its members must be able to capture the popular imagination as competent and caring managers of the society, corporation and brand Barbados Inc.

I am currently reading a book, “The Professor and the Madman”, written by Simon Winchester in 1998, about the making of the Oxford English Dictionary. The following passage is most apposite to the present discussion: –

“When conceived it was a project of almost unimaginable boldness and foolhardiness, requiring great bravura. Risking great hubris. Yet there were men in Victorian England who were properly bold and foolhardy, who were more than up to the implicit risks. This was, after all, a time of great men, great vision, great achievement. Perhaps no time in modern history was more suited to the launching of a project of such grandiosity…Grave problems and intractable crises threatened more than once to wreck it. Disputations and delays surrounded it. But eventually -by which time many of those great and complicated men who first had the vision were long in their graves – the goal…was duly attained.”

The question clearly begs asking -Do we currently have such men… and women in our midst?

The Jeff Cumberbatch Column – A Season of Constitutional Change

Posted on March 6, 2016 by David

Jeff Cumberbatch – New Chairman of the FTC

“The greatest threat to our Constitution is our own ignorance of it…” – Jacob Roecker

“How easily men satisfy themselves that the Constitution is exactly what they wish it to be…” –Joseph Story

It would appear that the several jurisdictions in the region or, at least, some of them, have been seized simultaneously with the urge to re-examine their Constitutions and to reform these in some particular or other.

Later this week I am scheduled to participate in a panel discussion in Antigua & Barbuda on that twin state’s possible accession to the appellate jurisdiction of the Caribbean Court of Justice [CCJ]; an initiative that is to be the subject of an upcoming referendum as is constitutionally required in that jurisdiction and some others, once a delinking from the Judicial Committee of Her Majesty’s Privy Council is contemplated. It is an interesting contrast that no identical procedure was deemed necessary for that latter tribunal’s adoption at the coming into force of the Constitution.

And, as if it were irremovable from the public discourse, the notion of Barbados assuming formal de jure republican status returned last week with some force in a widely-reported panel discussion, despite an earlier and rather emphatic denial by a senior public officer, situated in the office of the Prime Minister no less, that this specific reform was not being considered currently.

On that occasion, one of the more newsworthy items, for obvious reasons -given our penchant for intrigue and the prurient-, proved to be the revelation that there had been an earlier effort to draft a “republican Constitution” for Barbados. In light of this information, most people seemed shocked that so significant a national development could have been undertaken “in secret”.

I tend to agree with the popular sentiment to some extent. While I understand, of course, that the draftsmanship of a Constitution is a technical exercise that would be best left to those who may be skilled in the area –that is, the drafting of Constitutions and not necessarily constitutional law-, the very nature of such a document demands intensive public participation in its broad outlines.

The Constitution connotes by definition that it is a document “constitutive” of the nation, and is not merely to be treated as any other piece of legislation. It is, otherwise put, a creation of the people, by the people, for the people. Hence their consent to its provisions should sedulously be sought.

I do not agree that this requirement would have been constituted (pardon the pun) by the views expressed to the admittedly wide-ranging Forde Commission. After all, to the best of my knowledge, this body was charged merely with eliciting popular opinion on general constitutional reform, as opposed to the precise elements of the form of governance that would ensue. In other words, once republican status had been considered the desired constitutional arrangement, only then what the international lawyers call the “travaux préparatoires” would have assumed pride of place through the determination of the finer points of that arrangement.

Indeed, if memory serves me correctly, the drafting of a “republican” constitution would have been precipitate in any event, since the actuality of this was officially hinged on the outcome of a referendum on a question that naysayers were to quick to seize on and to object to as insulting their “intelligence” when, as a matter of law and fact, it was the direct answer to that question that would have provided the irreducible minimum of formal republic status. Maybe that was the true reason for the re-drafting of the Constitution –simply to give those persons and their ilk additional fodder on which to vent their monarchical spleen!

I have also been made privy recently to a number of Bills that indicate the contemplation of substantial Constitutional reform in Grenada. According to the Grenada Government Gazette of February 12, 2016, these Bills, all styled Constitution of Grenada (…)(Amendment) Bills, were read for the first time in Parliament in early December last year.

They comprise (i) A Bill to restrict anyone from holding the office of Prime Minister who has held this office for three consecutive Parliamentary terms prior; (ii) A Bill to prescribe a fixed date for general elections; (iii) a Bill to ensure that there is the appointment of a Leader of the Opposition in Parliament even if, as has happened, all the members of the House of Representatives are members of the political party that forms the Government; (iv) A Bill to permit Grenada’s accession to the appellate jurisdiction of the CCJ; (v) A Bill to provide for the formal re-structuring of the Constitution; (vi) A Bill to change the name of the State from Grenada to Grenada, Carriacou and Petite Martinique; (vi) A Bill to establish an Elections and Boundaries Commission; and (vii) A Bill to refine the Chapter protecting fundamental rights and freedoms; to provide expressly for Directive Principles of State Policy; and to insert a new Chapter on Gender Equality.

These should provide ample material for legal scholars, and political and other social commentators to reflect on. I am especially provoked by the last Bill mentioned above that seeks, inter alia, to increase the kinds of conduct that would constitute discrimination, by adding to the traditionally proscribed grounds, those relating to disability, ethnicity, language and social class; to guarantee the right of a child to education; to require the state to aim at enhancing the supply of food, water and health facilities; and to domesticate relevant treaties.

In this existing climate of formal constitutional change in the region however, it is imperative that citizens become more familiar with the workings of the relevant document. I have often expressed my intrigue in this space at some of the assertions, not all populist or lay, as to what may be contained in the Constitution and what conduct may be contrary to its provisions.

We have had the Bar Association finding therein an express right to work; and relatively recent assertions that it would be unconstitutional for the police to arrest someone on suspicion of him or her being about to commit an offence; that the conferral of a knighthood is included in the Constitution; that the choice of Opposition leader is restricted to members of one political party; that the Attorney General must be a member of the Lower House; and that the Prime Minister may be removed by a simple majority of members of the House that support the government advising the Governor-General of their change of heart. These are all, if nothing else, mythical.

The Barbados Constitution

The Jeff Cumberbatch Column – Of Glorious Uncertainties

Posted on February 28, 2016 by David

108

Jeff Cumberbatch – New Chairman of the FTC

It has always been my view that the closeness of the outcome of the 2013 general elections in Barbados spoke more to a popular perception that there is very little to choose from between the two major parties with regard to policy and general conservatism, and to a shared wonderment whether the solution to our current social and economic malaise is the traditionally political than to any overwhelming or underwhelming preference for one group over the other.

A similarly, though not identically, close electoral outcome in last week’s elections in Jamaica serves only to confirm this assessment in my mind, as does the farce being played out currently in the US where, among the Republican party candidates, the frontrunner in the primaries and likely nominee is one who eschews the traditional political solution, refuses to give an intelligible answer to any policy issue and, either wittingly or unwittingly, manages literally to insult the intelligence of his audience to their wild acclamation and applause.

“We won with the poorly educated. I love the poorly educated”, he proclaims to raucous approving cheers. And as to how he will bring back the American dream that many of the electorate wishes for, he is in earnest- “Look. We can bring the American dream back. That I will tell you. We’re bringing it back. Okay? And I understand what you’re saying… “Is the American dream dead? And the American dream is in trouble…but we’re going to get it back and do some real jobs…”, before he abruptly breaks off to acknowledge a man in a “beautiful red hat”. “Stand up! Stand up!” he urges, “What a hat!”

The surprising success of this absence of specifics and the appeal to trivia causes one to wonder at the relevance of traditional poll questions about the issues that ought to be considered. Do people really give serious consideration to the party’s or an individual candidate’s position on them, should these ever be articulated? Or is it that these do matter, but not so much as the populist perception of where a party stands on a particular question of policy? Might it not be that elections are not won [or lost] so much on the basis of what you do or do not say but rather on what it is people believe you to be saying (or not saying) and whether this resonates with the volksgeist – the spirit of the people – at that critical moment? If so, our local inquiry would be more usefully directed to determining this factor rather than in spending time analyzing, in a context where all are supported by a minority of those polled only, who is likely to prove most (or more) popular. As a wise commentator once observed, in politics the truth matters less than perceptions.

Nevertheless, the expression that forms the basis of today’s caption is usually employed, not so much in the realm of electoral politics but in one that equally serves as fodder for popular discourse in the region –that of cricket. And in recent times, that conversation has focused mainly on the alleged maladministration of the game, although our playing fortunes should have received an infrequent boost with the victory of the regional squad at the Under-19 World Cup in Bangladesh earlier this month. Indeed, those in opposition to the regime of the current [West Indian Cricket] Board [WICB] were quick to forestall any claim to a contribution to this achievement by the Board.

Writing in a column in Wisden India, former WI cricketer and now cricket commentator, Mr Michael Holding, asserts; “For all the well-deserved praise of the young side…it is ridiculous that the victory is being used by some at the [WICB] to portray the image that everything is fine in the Caribbean (sic). The same claim was being made when the senior team won the Twenty20 World Cup in 2012, but where has our cricket gone since then?”

Mr Holding echoes a seeming general disgruntlement with the current Board that has been voiced by many regarded as influential within the region. In an earlier column in the same publication, Dr Rudi Webster intoned, “It would be a tragedy if administrators who have contributed little or nothing to the administration of West Indies cricket could knowingly and intentionally destroy everything that our great stars achieved on and off the cricket field. And indeed, everything that past administrators fought for since 1928…”

Further, the immediate dissolution of the Board has been recommended by a CARICOM Cricket Review Panel that, bizarrely, included a member nominated by the Board itself and, more recently, the heads of regional governments in caucus accused the WICB of “undermining the integrity of West Indies Cricket”, whatever that phrase might mean, and described the Board’s corporate governance standards as “undesirable”. Other similar instances abound.

In the face of this apparently universal assault on its governance from leaders, players, commentators and, as my late mother would have said, “Nesha, Kaya and Bobby Fray” [?], the Board has managed to subsist with an equal measure of obstinate claims to constitutional legitimacy and dogged confrontation. It bears reminder somehow of the poem, “Casabianca”, by Felicia Hemans –

“The boy stood on the burning deck

Whence all but he had fled;

The flame that lit the battle’s wreck

Shone round him o’er the dead…

The flames roll’d on… he would not go…

For my part, I am inclined to be wary of criticism that seems a tad too popular and eerily reminiscent of the mass hysteria of the late 17^th century Salem witch hunts. Not that I am overly partial to defending the Board itself, but that I am also of the opinion that much of the current carping criticism is owed to an admixture of frustration with the woeful performances of our senior team, the impatience of the critics with a seeming inability to get their own way and a general regional sentiment that our players are among the, if not the, world’s most talented exponents of the game and if we are nowhere near the top of the ICC rankings, then it must be owed to some other factor -Others abide our question, you players are free.

Might it be the selectors? Nah! The coaches? At all! The management? Scarcely! Then it must be the Board! Are we not all on the same page?

The Jeff Cumberbatch Column – Limitations on Freedoms

Posted on February 21, 2016 by David

Jeff Cumberbatch – New Chairman of the FTC

It should be notorious by now that no freedom is absolute, but that these may be constrained by, inter alia, the extent to which they may impinge on the recognized freedoms of others; by sundry public interests such as health, order, safety, defence or morality, among others; or, of course, to the extent that their exercise is already proscribed by law. Even so, the law requires a balancing of interests in this context, so that except for the last instance, the abridgement of a freedom is subject to the doctrine of proportionality- that such abridgement is “reasonably required” or, as some have put it, “reasonably and demonstrably justified in a free and democratic society”.

In this regard, first, the measure must be rationally connected to the objective sought to be achieved by it, in that it must not be merely arbitrary or based on irrelevant considerations. Second, the means employed to impair the freedom should do so to the minimum extent possible and, third, there must be a justifiable and proportionate relation between the effects of the measure and the achievement of the objective.

In recent days, there has been a plurality of claims, whether wittingly or unwittingly, made by some people that there has been, is, or is likely to be, an unjustifiable curtailment of some freedom to which they are entitled, either by statements made in the public domain or by proposed policy measures. Our present inquiry relates to whether these claims of purported infringement are indeed justifiable or whether they amount simply to illegitimate assertions of licence to do as the claimant pleases, without any let or hindrance whatsoever.

One of these claims that has been asserted relates indirectly to the rather tragic circumstance of the murder in Trinidad & Tobago of a young Japanese visitor to the recent Carnival festivities. Even before a motive for her killing or the exact cause of her death had been determined, the then Mayor of Port-of –Spain, Mr Raymond Tim Kee, opined, in a rather ill-chosen moment, that women specifically had a duty to ensure that they were not abused and proceeded to admonish them generally for their wanton vulgarity and lewdness exhibited during the festival.

It might have been bad enough had he stopped at this general level, even though the connection with the lady’s death was clear, but his Lordship proceeded to pinpoint the subject matter of his soliloquy –“…was there any evidence of resistance? Was it alcohol-controlled and therefore involuntary actions engaged in? It is not that she was hit by a truck, it is a matter that she was jumping up in a costume…”

The popular antipathy to these unfortunate comments eventually led to the Mayor’s resignation last week, a phenomenon that is itself worthy of further analysis in the larger context of limited freedoms being explored here. The more immediate issue, however, is that the Mayor directly challenged the Trinidadian woman’s traditional right to freedom of expression –her right to “play herself” at Carnival.

Given both the geographical and circumstantial context in which Mayor Tim Kee sought to proffer his controversial view, it may be argued in hindsight that he unwisely picked a battle he had to lose. And while it would be witless to contend that the near-nudity of some of the costumes “worn” by females during the festival should unfailingly provoke any man into an act of sexual violence, the more fundamental issue of whether there should be any restriction, other than the law of indecent exposure, on the freedom of the individual female to “play herself’” at carnival time, or whether there should be unlimited licence in this regard, was regrettably lost in the brouhaha.

It is an issue that we ourselves will eventually have to face locally, given the cultural penchant for mimicry. I fear, however, that with our intrinsic reluctance to confront thorny problems, it is one that may survive unresolved for some time yet, never mind those voices occasionally raised in obligatory protest.

Fingerprinting, sensitive personal information, and constitutional freedom

The announcement last week by the Chief Immigration Officer that from April1 there will be the fingerprinting of every person entering and leaving the island, has naturally raised the hackles of those who consider this to be an infringement of liberty, at least in respect of Barbadian citizens, even though none of the objectors I have heard so far has been careful to indicate precisely which freedom might be implicated by this measure of data collection.

Lay opinion might trend towards it being an unjustifiable invasion of privacy, but it should be noted that the express constitutionally guaranteed right to privacy in section 17 of the supreme law is itself substantially limited, both as to content and in the breadth of permitted restrictions.

Of course, there are those who see nothing wrong with the measure. Assistant Commissioner of Police Erwin Boyce sees it as a positive move and “important in responding to criminal threats”. So too do some tourism officials who regard it as an aspect of a changing world and, “given the rise of ISIS and other terrorist groups”, that a jurisdiction should put all measures in place to make sure that it is as safe a destination as possible, although some reservation was expressed as to its potential for further delays of travellers in immigration and customs especially at peak times.

For those who so often bemoan the absence of my personal view, I must state that while the proposal does not immediately offend the constitutional text, there is, nevertheless, the risk of this measure, if not carefully policed (no pun), infringing one or more of the eight fundamental principles of data protection that are held to govern the collection of personal data from individuals.

Among these are Notification of purpose (2) –that the data should be obtained for a specific purpose and should be used for no other purpose; No prolonged retention (5) – that the data must not be kept for no longer than is justifiably necessary; and Portability (8) –that the data subject’s personal information should not be transferred to any country outside of Barbados unless that jurisdiction provides a comparable level of protection for the rights of data subjects in the processing of personal data as obtains locally.

There is one hitch, however. Barbados has no data protection legislation in place, though a cognate Bill was in circulation about ten years ago. This leaves the citizen with little statutory support for objection to the measure currently. Any objection must therefore be based on what is considered to be fair and just.

We are therefore called upon once more to trust to the bona fides and goodwill of the authorities to safeguard what, in nations that “punch above their weight” and are among the freest of their kind, is a basic civic right. I do not get the distinct impression that this trust is in abundant supply.

The Jeff Cumberbatch Column – Of Rights, Existing and Imagined…

Posted on February 14, 2016 by David

Jeff Cumberbatch – New Chairman of the FTC

I have always been intrigued by the average Barbadian attitude to the assertion of a right or freedom by another individual. Depending on, inter alia, the identity of the individual, the nature of the right claimed and, regrettably, all too frequently, the perceived partisan political colour of that assertion, the proponent is liable either to have his or her claim endorsed; to be sharply reminded that with rights always come overarching responsibilities; or to have the plaint roundly rejected on the basis that it is not compatible with local tradition or current right thinking.

It may be because we are, as a people, not overly familiar with those rights to which we may be entitled. While many are given to err on the precise nature of those fundamental rights expressly guaranteed by the Constitution -as witness the recent erroneous assertion by the Bar Association that among these may be located the right to work, and the quaint belief that the constitutional right to privacy is equivalent in breadth to that in the US which engendered the Supreme Court decision in Roe v Wade, there are equally those who may be unaware that Barbados is a state party to at least two international conventions -the Convention on the Elimination of All forms of Discrimination against Women and the Convention on the Rights of the Child- that include the right to access to safe drinking water and sanitation.

For example, Article 24(2) of the latter Convention provides that States Parties shall…take appropriate measures:

…

(c) To combat disease and malnutrition…through, inter alia, the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution…

Even so, those rights to which we may be lawfully entitled are not absolute; indeed the catalogue of qualifications to the constitutional rights frequently exceeds the enumeration of those aspects of the right itself.

Likewise, even though there may be a legitimate expectation to the state supply of clean drinking water, regulation 12 of the Barbados Water Authority (Water Services) Regulations 1982 stipulates, “Where (a) there is a deficiency in the source of supply owing to a drought, or to any contingency affecting any supply works or machinery, or to any interruption caused by repairs, accident or other cause; or (b) the Authority or its General Manager considers it expedient to interrupt the supply of water, the Authority may, without notice, reduce or temporarily discontinue the supply of water to all or any particular area.” (sic).

It should be noted that this occurrence neither imposes any liability on the Authority nor affects the liability of an occupier to pay all the proper rates, charges or fees.

Then, sometimes, in an effort to prevent the future claimed existence of a right, those opposed to its assertion will clamour for its prior express denial by the state authorities. I am given to think that this may be the case with some of the local church authorities and the notion of same sex marriage.

To my best knowledge, no individual or body has as yet publicly expressed a desire to contract such a union locally but, ever since the US Supreme Court found by a majority that such a right existed in the due process clause of the US Constitution, the religious sector here has been engaged in a rather quixotic attempt to forestall the likelihood of any identical entitlement being argued to have been located in this jurisdiction.

I do not know to what extent that lobby has taken legal advice on the matter, but this feared eventuality is not at all possible here without substantial legislative intervention. This would become necessary since existing local law precludes both the legal consummation of any such union -thus relegating it to an inherent nullity- and, even prior, negatives the very legality of the ceremony itself, since our common law requires that this be concluded between a man who was born a man and a woman who was born a woman.

In spite of these fundamental barriers to the actuality of a lawful same sex marriage and the unlikelihood of any political party rightly concerned with electoral advantage to propose such, some elements of the church sector continues to tilt at the windmill of same sex unions, while adroitly avoiding the more fundamental issue of accordance with respect for the dignity and private life of the individual of the state criminalizing, but not at all enforcing, homosexual acts between consenting adults in private. I suppose sufficient unto the day is the proscription thereof… enforcement does not seem to matter.

Another issue during the past week that involved a limitation on a fundamental right is the alleged attempt by some to have certain information on a revelatory website criminally proscribed. Of course, this engages the fundamental right of freedom of expression, though in a most topical manner.

It should be by now notorious that the right to freedom of expression may be limited to the extent that the law in question makes provision that is reasonably required for the protection of the reputation of others. The tort of defamation has been for long been accepted as providing one legitimate restriction on this freedom. The question begs asking, however, as to whether the criminalization of defamatory expression is either reasonably required or desirable today.

This issue has provided some interesting developments. In a 2004 decision of the Judicial Committee of Her Majesty’s Privy Council, the Board there observed that criminal defamation was a reasonably justifiable aspect of the law in the democratic society of Grenada, since it was to be found in many other democratic societies “such as England, Canada and Australia…”

Yet, barely five years later in 2009, England itself abolished the concept of criminal libel. Some regional jurisdictions have followed suit, including Grenada (2012); Jamaica (2013); Trinidad & Tobago (2013 –one form only) and Antigua & Barbuda (2015). Barbados, which reformed its defamation law in 1996, has nevertheless retained the offence of criminal libel.

One of the difficulties associated with this offence is that its few regional prosecutions appear to have been largely restricted to those who engage in the defamation of public figures, particularly politicians, and not of the ordinary individual. I am not persuaded that it was intended that the offence should be used in this way in the absence of specific provision as to seditious libel concerning bringing the state or its government into contempt. There already exists the civil remedy of damages that is available to all deserving victims of this wrong.

Happy to relate, however, there has been no recent local prosecution and, given the tide of modern jurisprudential opinion, one seems unlikely anytime soon.

The Jeff Cumberbatch Column – Suspension, Extinction or What?

Posted on February 7, 2016 by David

Jeff Cumberbatch – New Chairman of the FTC

“People might not get all they work for in this world, but they must certainly work for all that they get…” Frederick Douglass

The Barbadian industrial relations culture is relatively unsophisticated. Here, there is no formalized process of the recognition of a workers’ organization as the certified agent of a bargaining unit, an issue that that has arisen on at least two occasions in recent times; there is no industrial tribunal or court to resolve rights disputes according to law; the collective agreement does not create a binding legal relation; and while there has been an attempt to preempt these and other issues by the establishment of a form of social partnership comprising representatives of labour, government and the private sector, there is at least some dispute as to whether this arrangement is as functional as it should be. At the same time, there is no essential services legislation.

Hence, industrial disputes are generally resolved by “force of industrial arms” and prime ministerial mediation rather than by judicial reasoning, even if the issue is one that cries out for a legal resolution. Of course, there may be nothing wrong with this method once all sides are on board with it, but my training compels me to see the legal recourse as the more effective option, especially where the issue is essentially one of legal principle.

Take, for instance, the on-going dispute between the local public sector union, the National Union of Public Workers and GAIA Inc., the concern that manages the island’s lone airport. From what I can gather, this dispute, which has already engendered one round of protest action, and some perfunctory “sabre rattling” from both sides of the divide, involves the deceptively simple issue of whether the workers are entitled to a further 3.5% as part of an overall 7.5% wage increase that had been agreed to between the parties in 2010. I say “deceptively simple” here, because, as I will argue later, the legal issues are indeed rather complex.

As is usual in these matters, those facts that are in the public domain are regrettably vague, but it seems that after this seven point five percent increase was agreed, and four percent of it had been paid to workers, there was an official directive that there should be no further increases in wages at that time owing to the existing economic climate. It is also reported that the NUPW initially objected to this but, at a meeting at the Prime Minister’s office in late December 2010, a “compromise” was reached between the parties. This understanding appears to have entailed that the outstanding 3.5% would be “taken off the table” (the quotation marks are not meant to indicate that these were the actual words used). It is alleged, in addition, that the workers at a meeting in early January 2011 endorsed this compromise. That endorsement was communicated to the relevant parties in writing.

However, according to the NUPW, that same correspondence included a condition that “should the economy improve” between then and June of that same year, the union would want “to revisit the moratorium placed on year 2011 increases”. It appears to be a bone of contention whether this condition subsequent as to an improvement in the economy was ever fulfilled.

It is, for me, a pity that this dispute will not be resolved in a legal forum, mainly because it does present some intriguing legal issues. For one, would the initial promise by NUPW to forgo the 3.5% be contractually binding, given that the other side had supplied no consideration for this promise? Or should it be treated rather as a waiver extinctive of the rights of the workers?

For another, what is the effect of the subsequently notified condition that this concession was to be read subject to there being no improvement in the economy in the next six months? Did this effect a mere suspension of the workers’ rights or was it an unseasonable (too late) qualification of their original concession? Had it been stated from the outset of the compromise?

Finally, if the condition was applicable, was there indeed a measurable improvement in the economy during the stipulated period? Or is that stipulation too vague to be legally enforceable? Would it now be inequitable for the NUPW to assert its claim to the 3.5%?

While such issues would clearly be matters for urgent consideration in the industrial courts of Trinidad & Tobago or Antigua & Barbuda or in the Industrial Disputes Tribunal of Jamaica, they will have to be resolved here eventually on the uncertain basis of apparent moral legitimacy and perceived right. Unfortunately, in Barbados, that frequently translates at the populist level into the partisan political agenda with opinion evenly divided between the views of those in support of the apparent position of the governing administration and those opposed thereto. This is almost laughable, especially in a circumstance where the dispute is between two independent entities…but that is the way it is. As I have noted on more occasions than a few prior, we subsist in a theatre of the absurd.

As it is, the current dispute is situated in the heart of the main port of entry in the middle of the tourist season -the lifeblood of our economy. Ordinarily, this should concentrate the national mind to immediate action, but not here. It will work itself out in the end, I can hear. It always does.

The Jeff Cumberbatch Column – On Nearing Fifty (iv)

Posted on January 31, 2016 by David

The changing mirror image

Jeff Cumberbatch – New Chairman of the FTC

“Why should one man have a mirror image of you that you do not want to have of yourself? What kind of society are we striving for? There is no point in striving for Utopia, but you do not realize your potential…” – Mr Errol Barrow (1986)

I am compelled to begin today’s effort with a mea culpa or, in todayspeak, a “my bad”. In last week’s column, “Humpty Dumpty comes to town”, I wrote of the angst of Mr Ralph Williams at hearing Prime Minister Freundel Stuart refer to Barbados as “the freest black nation on earth” at the launch of the 50^th anniversary of Independence celebrations earlier this month.

Now, having been provided with, and having perused, a copy of Mr Stuart’s speech at the ceremony, I am satisfied that the Prime Minister made no such claim then or at all, and I should wish to withdraw unreservedly the assertion on my part that he did so. I am further advised that the claim was in fact made in a video presentation at the event that listed a number of the ways in which Barbados has been described over the years. My error is purely to be blamed therefore on what I consider to be regrettably sloppy scholarship on my part -I trusted to faulty recall rather than double-checking the news report. My bad!

Incidentally, Humpty Dumpty has not as yet left town, if we are to judge from one topic of popular discussion this week, that of the incident relating to the punishment of a secondary school girl who refused to follow a teacher’s instruction to pick up from the ground a wrapper of some sort. Here, some contributors to the discussion sought to distinguish, depending on their view, between the toxic “garbage” and the merely untidy “litter”. I suppose that those who would “cavil on the ninth part of a hair” might convince themselves that there is a substantial distinction between the two, although it bears reminder that litter is ultimately placed in a garbage can…or is that a litterbin? Much like the issue whether Hog Food/King Dyal was indeed properly described as an icon or was merely a mascot.

Thirty or so years ago, the Leader of the Opposition as he was then, and imminent Prime Minister to be, now National Hero, the Right Excellent Errol Barrow, inquired of our citizens as to what mirror image we had of ourselves. It is indeed intriguing that this interrogatory preceded the Michael Jackson megahit, “Man in the Mirror”, that was released the following year. For a people not usually much given to introspection, this question resonated significantly, although it appeared that this was more for the allure of maxim than for the message that Mr Barrow intended to convey.

That was then. Clearly, at 20 years of age, the individual may be obsessed with his or her full-length “mirror image” –the unlined face, the pert pectorals, the six-pack abdominals, the firm thighs…Likewise, by analogy, the relatively young nation might have been more concerned then with its physical appearance –the tall buildings, the other material accoutrements, the balance of payments. Now, as we near 50, and as the human being perceives in many cases the encroaching facial lines, the effects of gravity on a once proud chest and the pre-arthritic knees, the mirror image itself becomes less endearing and emphasis is placed rather on the stability and wholesomeness of the structure.

At this stage, regular inspection of the body politic becomes essential for the state as well as for the individual. This suspicious lump here –should it be excised or best left alone? That worrying cough – a mere allergy or something far more sinister? The frequent nocturnal acid reflux –a decreased resistance to spicy foods or…?

Now the state should be concerned more with its fundamental and other obligations to its citizens –Are our people being afforded their basic entitlements in keeping with their rights to dignity, respect and autonomy? Is each individual being empowered to exercise his or her economic, social and cultural rights in addition so as to become a more productive citizen? Do we permit the people to enjoy the benefits of those international obligations to which we have committed ourselves? Has there been an attempt to encourage the mutual trust and confidence that ought to exist between the citizen and the state in a modern progressive democracy?

Equally, the citizen should become more mindful of his or her contribution to the national good, among other things. Does he or she indeed care for the welfare of Barbados or does this vary depending on the colours of the administration? Do we give an honest day’s work as due consideration for a day’s pay? Are our civic obligations being adhered to?

I sub-titled this essay, “The changing mirror-image”. Perhaps it is not that at all… Mirror images may now be passé. It is time now for the report card.

The Jeff Cumberbatch Column – Humpty Dumpty Comes to Town

Posted on January 24, 2016 by David

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Jeff Cumberbatch – New Chairman of the FTC

“I don’t know what you mean by ‘glory’ “, Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t -till I tell you. I meant ‘there’s a nice knock-down argument for you’!”

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’ “, Alice objected.

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean –neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master -that’s all.”

Alice was much too puzzled to say anything… Through the Looking Glass… -Lewis Carroll (1871)

Language, especially the English language, is notoriously imprecise. And, therefore, it is highly likely to confuse, bemuse and sometimes amuse when employed in its principal function -that of communication. This need for clarity might partly explain why lawyers and scriveners of old were much given to the use of the doublet expression (or the pleonasm as they are sometimes pejoratively called nowadays). These are phrases such as “to have and to hold”, “cease and desist”, “let or hindrance”, “aid and abet” and “null and void”.

A more mercenary and hence more popular explanation though is that since lawyers were then remunerated according to the number of words in a drafted document, the legal doublet became de rigueur in order for the attorney to earn a sizeable fee.

Of course, the relatively recent thrust towards the “plain English” mode of drafting legal documents has now rendered this style largely superfluous (no pun) and, too besides, the degree of difficulty in draftsmanship of the document has significantly replaced the number of words in it as the principal tariff of the attorney’s fee.

Even with plain English however, imprecision persists and the hoary principles of the interpretation of deeds and statutes yet maintain contemporary relevance. Imagine then, the bedlam that may ensue in lay communication when a speaker or writer attempts to convey information to the public. And add to that the Barbadian context whereby the identities of the speaker (especially if a politician) and of the reader or listener assume major relevance. More so, where the topic is one as sensitive as race relations or of what should be considered preservable local heritage; two matters that are swiftly becoming indistinguishable here.

In parenthesis, it should be recalled that Barbadians are rather ambivalent about communication. While English is the official lingua franca, and the use of more popularly spoken dialect is frowned on at times by some, it is nevertheless seemingly accepted in the media so long as there is a perception that the writer or speaker is, I suppose, otherwise proficient in the use of Standard English and simply being light-hearted or engaging in mimicry on the occasion.

For those of us writing in Standard English however, we are often enjoined to write for “the common man”, a fiat that entails using a range of words and expressions that should be familiar to the average third form student at secondary school. Thus, any usage that may not be grasped without using a dictionary (!) is considered as gratuitous ostentation or “showing off” by the author, although to be fair, there are some who have remarked favourably on the periodic additions to their vocabulary.

Both of the phenomena referred to two paragraphs earlier have entered the public domain in recent weeks. First, Mr Ralph “Bizzy” Williams, a lighter-coloured national, took umbrage at the Prime Minister’s public reference to Barbados as being the “freest black nation in the world”. Second, the historian, Mr Trevor Marshall, is reported as having expressed displeasure at an official reference to the late and eccentric public character “King Dyal” (aka “Hog Food” in my youth) as a “leading cricketing icon” and a “legend in his own right”.

With regard to the first issue, Mr Williams’s objection appears to be primarily based on the fact that it is a misnomer to describe Barbados as a “black” nation, given the presence and contribution of many whitish Barbadians over the years. I read a later clarification where he would have preferred a description of modern Barbados as “multi-racial”.

On the simplistic point of the various races present in the nation, Mr Williams is of course right, although I do not think that the Prime Minister was making a racial reference, erroneous or at all, by his description. In any event, it does seem particularly useless nowadays to refer to a country by reference to the races of its citizens. Indeed, given the incidence of forced and voluntary migration, there are currently very few nation states that may not be referred to as “multi-racial” by Mr Williams’s token.

However, while I thought that the Prime Minister’s statement was merely a harmless repetition of one of those idle jingoistic boasts that that we so much adore in this region –“a nation that punches above its weight” and “ the best beaches in the world” come readily to mind-, the geopolitical reality is that for those few individuals who may still want to describe a nation by reference to a colour, the principal cosmetic indicators are the race of the overwhelming majority of its citizens and the colour of those who hold economic and legislative power. An examination of apartheid South Africa provides a clear example; the majority race was African, although Whites controlled the laws and the chief economic indicators. How should one describe South Africa then? And now? How should the US or UK be described today ? Are we really a “monarchy”? A “Christian” society?

It is indeed remarkable that none chose rather to challenge the accuracy of Mr Stuart’s superlative.

Mr Trevor Marshall’s objection does carry some weight at first blush. To my mind, to describe King Dyal as “a leading cricket icon” oversteps hyperbole and “legend” [except perhaps in his own mind] is clearly a stretch. I have not seen the calendar to which Trevor refers, but his objection, from the press report, appears to be based on the odium that the late character displayed towards black people. If true, perhaps this is more to be pitied than anything else. My support for the assertion is based rather on the fact that the self-styled “King” was merely another local character, no more memorable for all that than “Gear Box”, “Bulldog” or “Town Man” and “Town Woman”, for examples.

The Jeff Cumberbatch Column – The New Republic

Posted on January 17, 2016 by David

118

Jeff Cumberbatch – New Chairman of the FTC

It would appear as if the aspirations of those seemingly very few of us who harbour “high hopes” of our nation assuming formal constitutional republican status in our fiftieth year of independent statehood have been dashed by the recent prime ministerial announcement that there is the likelihood of a Royal visit in November this year. Of course, there may well be those constant “republicans” who will hopefully view this as indicative confirmation of a break with the British monarchy, and liken the proposed visit to that of the royal couple who attended our first Independence ceremony in 1966.

There may be some force in this reasoning. After all, the visit of British [I assume] royalty to our fiftieth anniversary celebration of a break from Britain does seem particularly incongruous, but I prefer to err with the view that this may simply be good old Barbadian hospitality and, since the royal family is the bloodline in which our executive authority formally resides currently, it would be bad manners not to invite its representation at our jubilee celebrations.

In other words, the announcement was, if nothing else, decidedly cryptic, and more so given the occasion and audience. So I shall continue my musings today on the likelihood of our becoming a constitutional republic, much, maybe, like the ant in the song… that thought that he could move a rubber tree plant. Fortunately, my sentiment for the change does not depend on mere political whimsy.

As I noted in this space last week, a significant amount of the opposition to “Republicanism” –I use the capital R advisedly, as will become apparent later- is owed to partisan political sentiment, and I refer to both of the occasions on which the respective parties touted the notion. This apart, there may be a few who are still wedded to the phenomenon of monarchy, although not a localized version of the concept that would, in any event, contravene our constitutional ethos of egalitarianism.

However, there are also those who simply have no idea of what republicanism means, and do not care to find out. Simply put, it is a form of governance where supreme power resides in the people and is exercised through their elected representatives in accordance with law. Thus republicanism is clearly our current practical reality; all that is needed –what I call the irreducible minimum- to achieve the formal Constitutional process of “Republicanism” is the express location of formal executive authority under the Constitution in a native head of state.

Nonetheless, the amalgamation of these various dissenting groups does present formidable numerical, if scarcely rational, opposition to the process. When their counter is not premised on the minutiae of appointing the local executive authority –will he or she be elected or selected? By whom or what? For how long? -; there is the issue of timing and prioritization –not now in our current economic state; not with this Government; not before everyone has a guaranteed reliable supply of running water in his or her household; not yet; the financial costs –of altering the names of places and institutions; of creating new letterheads; and of changing legislative documents and contracts, [one wag even suggested we would have to renegotiate ratified treaties]. In respect of this last, one recalls Oscar Wilde’s definition of a cynic – “a man who knows the price of everything and the value of nothing”.

One argument that merits some consideration, however, is that of subjecting the entire process to a referendum. While this proposition may be, at first blush, irrefutable in the interest of direct democracy, there are, nevertheless, some factors that may substantially relegate this to a head count of opposition rather than it becoming the reasoned sophisticated conclusion that should attend our public affairs.

For instance, the question should be precisely put so as to avoid misunderstanding but, as some of us are aware, a question is not asked in a vacuum, but exists, rather, in a cloud of assumptions and (mis)understandings. In this regard, an apparently simple referendum such as “Should Barbados become a republic? Yes or No” could easily be converted into one of those questions in Latin that suggests the answer by the first word used. Presumably, most of those in favour of the change to formal status will vote “Yes”, although there may be some who would consider the question nonsensical since we are already a republic by convention.

However, the question appears predisposed to dissent, whether this is based on personal opposition to the idea, politically partisan sentiment because of the identity and propaganda of the proponents or opponents; sheer ignorance of the concept proposed; or merely the way in which the reference is formulated.

It may be argued that the general election process is not much different, but that, at least, is demanded by constitutional fiat. The referendum is not now part of our constitutional architecture and, always, the question begs asking, which political measures should be rendered subject to this process?

In the context of government, for examples, Independence was not, at least formally; accession to the Caribbean Court of Justice was not; and the existence and configuration of the Senate were not. Should we include then all taxation proposals; ambassadorial appointments; what should be taught at UWI; and which historical sites should be considered apt for preservation….?

A quotation from a former British politician on referenda is instructive. According to him, after making reference to their use by Hitler and Mussolini, “ I think referendums are fundamentally anti-democratic in our system…on the whole, governments only concede them when governments are weak…”

The Jeff Cumberbatch Column – If You Can Keep It…

Posted on January 10, 2016 by David

Jeff Cumberbatch – Chairman of the FTC

Legend has it that in the summer of 1787, a crowd of US citizens gathered around Independence Hall in Philadelphia to learn what type of government their representatives had formed for the new nation. When Benjamin Franklin walked out of the convention, a lady known as Mrs. Powel could wait no longer. She approached Franklin and asked, “Well, Doctor, what have we got…a republic or a monarchy?” It is alleged that Franklin turned to her and said, “A republic, Madam, if you can keep it.”

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The Jeff Cumberbatch Column–Unprotected Practices

Posted on January 3, 2016 by David

Jeff Cumberbatch – New Chairman of the FTC

On this, the first Sunday of the new year, I wish a happy, bountiful and productive 2016 to all readers. I recall, from my ever-receding youth, a politician who would take out a newspaper ad at this time of the year. It went, “To all those who wish me well, and to all those who lend me hell, A happy Christmas and a prosperous New Year”. I should be so minded now to repeat these sentiments.

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The Jeff Cumberbatch Column – Yuletide Musings

Posted on December 27, 2015 by David

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Jeff Cumberbatch – New Chairman of the FTC

As the excesses of the Christmas Day just past recede in the national consciousness, we prepare this week to welcome in 2016. At the close of this year, there seems to be a popular consensus that the local economy is on the up, although this assertion remains unsupported on most occasions by any evidence, persuasive or at all.

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The Jeff Cumberbatch Column – An Unreasonable Restraint?

Posted on December 20, 2015 by David

Jeff Cumberbatch – New Chairman of the FTC

A combination of factors informed the relative brevity of today’s column. My university duties, as is usually the case at this time of the year, precluded any undertaking […] Continue reading →

The Jeff Cumberbatch Column – On Nearing Fifty (iii)

Posted on December 14, 2015 by David

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Jeff Cumberbatch – New Chairman of the FTC

In last week’s essay, I adverted to the phenomenon of the seemingly inviolable attachment that the majority of Barbadians have to the practice of infliction of corporal punishment on children.

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The Jeff Cumberbatch Column – Perspectives of Discipline

Posted on December 6, 2015 by David

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.

Jeff Cumberbatch – New Chairman of the FTC

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The Jeff Cumberbatch Column–The Agard Affair

Posted on November 29, 2015 by David

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.

Jeff Cumberbatch – New Chairman of the FTC

Musings: The Agard Affair

11/29/2015
By Jeff Cumberbatch

[…]
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The Jeff Cumberbatch Column – On Nearing Fifty (ii)

Posted on November 21, 2015 by David

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.

MUSINGS: […] Continue reading →

The Jeff Cumberbatch Column – Behind Closed Doors

Posted on October 31, 2015 by David

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Musings: Behind closed doors
11/1/2015
By Jeff Cumberbatch

[…]
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A Bold Change in Policy

Posted on October 24, 2015 by David

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

MUSINGS: A bold change in policy
10/25/2015

It is only natural that local policymakers should carry out their functions these days with a […] Continue reading →

The Jeff Cumberbatch Column – Strange Interpretations (ii)

Posted on October 10, 2015 by David

Jeff Cumberbatch – Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

MUSINGS: Strange interpretations (ii)
10/11/2015

The Second Amendment has been the subject of one of the greatest pieces of fraud…[…] Continue reading →

The Jeff Cumberbatch Column – Strange Interpretations

Posted on October 3, 2015 by David

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Musings:Strange interpretations
10/4/2015
By Jeff Cumberbatch

We are living in interesting times.

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The Jeff Cumberbatch Column – A Nation Under Law (iii)

Posted on September 19, 2015 by David

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Jeff Cumberbatch – New Chairman of the FTC

A Nation Under Law (iii)
9/20/2015
By Jeff Cumberbatch

Initially, […] Continue reading →

The Jeff Cumberbatch Column – The Scholar’s Tale

Posted on August 30, 2015 by David

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

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The Jeff Cumberbatch Column –Party of the Year

Posted on August 1, 2015 by David

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

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The Jeff Cumberbatch Column–The Dispute: Source and Aftermath

Posted on July 26, 2015 by David

Jeff Cumberbatch – Columnist, Barbados Advocate

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

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The Jeff Cumberbatch Column – It’s all about love…

Posted on July 11, 2015 by David

Jeff Cumberbatch – Columnist, Barbados Advocate

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

Musings: It’s all about love… 7/12/2015

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US Supreme Court Decision Rules on Same Sex Marriage

Posted on July 7, 2015 by David

Submitted by Charles Knighton

Senior Law Lecturer Jeff Cumberbatch

In next Sunday’s Advocate, Mr. Jeff Cumberbatch has promised a discussion of last Friday’s US Supreme Court decision sanctioning the constitutional validity of same-sex marriage for its “shock value and legal reasoning ” rather than its local relevance. I particularly look forward to his treatment of the legal reasoning underpinning this decision, for in my opinion it was not based on a dispassionate reading of the Constitution.

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2017	30
2018	28
2019	48
2020	41
2021	32
2022	43
2023	14

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BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.

Please share this blog

Like this:

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.

Please share this blog

Like this:

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.

Please share this blog

Like this:

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Please share this blog