Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill
The late US film producer, Samuel Goldwyn, is usually credited with first saying that a verbal (sic) contract is “not worth the paper it is written on”. In this statement, he would strictly have erred in at least two particulars; first, he probably meant “oral” instead of “verbal” which is the adjective for “in words” and not for “spoken”, so that even a written contract is verbal in the true sense and, second, he was also wrong in law since most oral contracts are legally enforceable except where statute requires that an agreement be in writing or be evidenced in writing.
But then Mr. Goldwyn was also known for other similar pearls of wisdom – He is reputed to have averred, “I don’t think anybody should write his autobiography until after he’s dead”, and when informed by one director that a script was too caustic, Goldwyn is alleged to have responded, “To hell with the cost. If it’s a good picture, we’ll make it!”
Mr Goldwyn’s first exegesis came to mind last week as I reflected on the diligent preparations being made by the respective political parties for a general election that may possibly be a twelvemonth or more away. As the Barbados Labour Party continues to rub shoulders with the citizenry and to stage its weekly constituency canvasses, the Democratic Labour Party appears to have settled on its slate of candidates for the campaign, having last week deselected three of the candidates that represented the party in the 2008 general election. The fact that among those deselected was one candidate who had been beaten in the constituency by a mere handful of votes signals the earnestness of that party to regain the reins of governmental authority.
Amidst all this, the collective third parties are equally busy with their nominations of candidates. It is not this form of preparation, however, that brings Goldwyn’s dictum to mind. The staging of public meetings at which the respective programmes of the parties will be made known to the electorate will naturally follow the current nomination process and will itself precede the written outlines of these policy proposals in the form of glossy manifestoes sometime later in the campaign.
It is at these latter two stages that we will have cause to wonder whether these verbal (both oral and written) promises to the electorate are indeed “worth the paper they are written on” or whether they are mere allurements held out to attract the unthinking into choosing one party’s candidate over that of another party in the thirty constituency elections that collectively comprise the whole.
The observant reader would have noticed that I have chosen not to refer to these promises as “contracts”. This is so for the strictly legal reason that a contract is accepted to be a legally enforceable agreement and, try as hard as I might, I am unable to detect in the political promise, if it may be so described, any hint of an agreement on the part of the electorate as opposed to simple notice of the policy proposals. Nor is there any truth in an assertion that they are legally enforceable.
First, it would be difficult to pinpoint with any degree of certainty which of the multiple promises might have caused the majority of a constituency to vote for a particular candidate and thereby supply the necessary consideration for that promise made by his or her party, whether it be the enactment of integrity legislation, the proposal to establish an office of Contractor General or the soonest passage of freedom of information legislation. Or even to revoke the current fee paying arrangement by Barbadian students at the University of the West Indies.
In any event, there may be good reason to believe that electoral support is not as linear as might be supposed, but owed rather to an eldritch combination of family tradition, candidate recognition and personality, bandwagonism and, perhaps, to rejection of the incumbent for articulated reasons of “doing-nothing-for- me-personally” or of “not-being-seen-in-the-constituency-since-the-last- election”.
It may be in this context that some have expressed the view that such proposals are not promises at all, but are mere moral representations of future conduct whose realization is cribbed, cabined and confined by the opportuneness of the circumstances prevailing at the time in future most appropriate for their fulfillment.
It is in the aspect of legal enforceability, however, that the analogy has its clearest failure. While there may be the politico-moral enforcement of failed promises by an elector through a refusal to cast his or her vote for the candidate of the breaching or misrepresenting party, the very vagueness of the link between the political statement of intention and the collective electoral support of a constituency converts this form of recourse into a mostly dead letter.
In fine, my thesis is that the political promise, proposal, representation, undertaking or howsoever it may be termed is demonstrably not worth the paper it is written on. And calling it a covenant or a guarantee does nothing to change its essential nature.
Please permit me to express sincere sentiments of condolence to the family, friends and colleagues of Mr. Eli Edwards, Attorney-at-Law and quondam Public Counsel, who was called to higher service on Thursday last. Eli was a skillful prosecutor who clearly had the public interest at heart. May he rest in peace.
A blessed Easter Sunday and holiday to all my readers.