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The Jeff Cumberbatch Column – An Evolving Democracy (I)

Jeff Cumberbatch - New Chairman of the FTC

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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Musings:An evolving democracy (I)
8/9/2015
By Jeff Cumberbatch

“…[W] hile the old man may stand by some stupid custom, the young man always attacks it with some theory that turns out to be equally stupid.” – GK Chesterton

For some people, nothing, or very little, today is of the same quality as it was in a bygone era; one in which the individual in question existed, of course. To these persons, societal morals, educational and teaching standards, the nation’s relationship with God, the behaviour of juveniles, the standard of parliamentary debate, the exercise of their freedom of association by workers’ organisations, the quality of journalism, national athletic and general sporting prowess, and the nature of social intercourse, to name but a few, have all gone into irreversible and deleterious free fall.

Needless to say, it may have always been thus. Each generation appears to think that the one that succeeds it, despite available evidence, is hopelessly devoted to the certain destruction of the species. In a by now clichéd observation attributed to Socrates by his most celebrated student, Plato, the philosopher despaired of the youth of his day – “The children now love luxury, they have bad manners, contempt for authority; they show disrespect for elders and love chatter in place of exercise. Children are now tyrants, not the servants of their households. They no longer rise when elders enter the room. They contradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannise their teachers…”

While some of these observations would nowadays seem somewhat dated, doubtless others would be asserted to replace them in the minds of contemporary critics of the identical persuasion as Socrates. Indeed, more than a millennium after the above critique of the youth, Peter the Hermit is reputed to have bewailed in a sermon – “The world is passing through troublous times. The young people of today think of nothing but themselves. They have no reverence for parents or for old age. They are impatient of all restraint. They talk as if they know everything and what passes for wisdom is foolishness with them. As for the girls, they are forward, immodest and unladylike in speech, behaviour and dress…”

And there are more modern castigations of the same ilk. The reasons offered for these youthful failings have been as various as the catalogue of them. Most popular locally is the contemporary failure to send children to Sunday School; others have sourced them to the relaxation/abandonment of corporal punishment in schools and the village; while some have sought to invoke the supernatural and attributed it all to the influence of demons.

I cannot attest as to the validity or invalidity of any of these several theses, but likely they may all be owed to a reluctance of some Barbadians to accept that there has been an evolution of the social contract on which our state was founded and that those days, real or imagined, for which many of a certain age so nostalgically yearn are gone forever. It is my view that this process has been contributed to substantially by the technological revolution that has served to increase the individual’s access to information and has permitted him or her a broader freedom of expression, both identifiable and anonymous. In consequence, the greatest change may have occurred not in the decline of religiosity, or in the conduct of social intercourse, or even in the greater respect now paid to the guaranteed rights of the individual. Rather, it lies in a reality that depends for its very sustenance on the actualisation of these two phenomena; the advancement of the democratic process.

This argument should not require detailed explanation. Clearly, the better informed a people are, the more effective and intelligent their choices, whether electoral or otherwise, ought to be. Some governments, either not persuaded of this or perhaps all too aware of it, seek to suppress the information that is available for distillation available to the populace. However, this is not a very clever political strategy, since information, like nature, abhors a vacuum, and where authentic information is not made available to the electorate, then rumour and gossip will necessarily rush in to fill the void. This results, naturally, in a lottery, whereby an administration averse to this freedom takes the chance of that circumstance inuring to its benefit or to its detriment. In this context, the absence to date of local legislation regulating the freedom of access to public information is to be regretted, since it might lead to a presumption that there is something to be kept hidden when, indeed, there may be nothing such.

The expansion of the individual freedom of expression might, at first blush, appear more to be feared by the political class generally, especially given the emerging jurisprudential inclination for this fundamental right to trump the protection of the reputation of public figures such as those engaged in governance, the administration of justice and other public functions.

Indeed, while this notion is now firmly entrenched in many of the United States jurisdictions, it would require in the region some activism on the part of our judges to recognise, as Lord Nicholls did in 2000 that the guarantee of freedom of expression, inter alia, “enables those who elect representatives to Parliament to make an informed choice regarding individuals as well as policies and those elected to make informed decisions…”

The local defamation law is, contrary to uninitiated opinion, robust enough to accommodate a form of the public figure defence whereby such an individual who seeks to make a claim for redress for defamation must establish, in order to succeed, that the publication was malicious, in that the maker was aware that the imputation was false, was reckless as to whether it was false or not or, perhaps, was guilty of irresponsible journalism. In the absence of statutory provision to this effect, that seems unlikely in any event, a clear onus is placed on the judiciary to be proactive.

However, it does bear remarking that freedom of expression is much more than the unlikelihood of susceptibility to a defamation claim.

To be continued…

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15 Comments on “The Jeff Cumberbatch Column – An Evolving Democracy (I)”

  1. ac August 9, 2015 at 7:48 AM #

    Not everyone should be a parent, Poor parenting skills can mostly be attributed to the adverse effects of social decay demonstrated by children
    Although technological has peaked and broaden everyone ‘s interest with a wider margin to all types of information ,make no mistake that some of this information if not censored can become a toxic time bomb lying in wait in some of the unsuspecting minds be that youth or adult,
    The first order of business in my opinion is not to deny but to alter . Certainly there is nothing wrong with a sensible form of cautionary options which guides but not take away a persons rights to freedom of information.
    As a matter of Fact some govts have legislated such options as a Parental guide which gives parents a level of control as to what they children are permitted to watch or read.

    Like

  2. Caswell Franklyn August 9, 2015 at 8:56 AM #

    The problem with defamation of public officials, especially politicians, is that we have a judiciary that is hand picked by the same politicians. Whenever a judgment goes in favour of the politician, there will always be a lingering doubt in the minds of the public: Is the judge a Dem or a Bee and was that reflected in his decision?

    For our democracy to mature, politicians have to release the vice grip that they have on all aspects of this society. Otherwise we will continue on our merry way to being a full fledged banana republic, which by the way is just around the corner.

    Like

  3. Dompey August 9, 2015 at 9:18 AM #

    Caswell Franklyn

    What has the rule of law and due process to do with who administers punishment, and what the letter of the law truly entails? If there are judicial guidelines that a bench judge ought and must follow when he or she is handing out his or her punishment, he or she can either administer the miniumun or maximun sentence. So I don’t see where your argument is going as far as partiality, nepotism and cronyism goes?

    Like

  4. Dompey August 9, 2015 at 9:38 AM #

    Caswell Franklyn

    Am I right or am I incorrect in stating that a bench judge is given much latitude to administer punishment, but he can only do so within the prescibed confines of judicial guidelines? If this is correct then your argument falls flat on its face with respect to favoritism. (Bajan/ English Favouritism)

    Like

  5. David August 9, 2015 at 10:07 AM #

    @Caswell

    We have clashed on this point before read politician releasing its vice grip on the system, Now why would the political class be motivated to do such a thing.

    Like

  6. Caswell Franklyn August 9, 2015 at 10:10 AM #

    David

    I am not saying that they would be motivated in the normal course of things. Civil society must create the environment that will make it impossible to do anything else.

    >

    Like

  7. Jeff Cumberbatch August 9, 2015 at 10:14 AM #

    Mr Dompey,

    You misunderstand Caswell’s point. Much of what truly constitutes “the letter of the law” is subject to judicial interpretation. For instance, on this point of responsible journalism, the judge will have to decide whether a publication was in the public interest. Clearly, this is a decision on which learned people may rationally differ.

    Caswell is saying that if the judge decides that the allegedly defamatory publication was not in the public interest and therefore a defamation of the politician,or vice versa, then, if the judge is a creature of that politician or of his party, some people might say that the decision was one influenced by partisan considerations.

    That is true but sad, since with an iron-clad security of tenure, the judge should owe no allegiance to anyone, least of all a politician. But you cannot stop a malicious public from giving its opinion especially if the court decision does not accord with their uninformed view. Recall the Bush v Gore decision by the US Supreme Court? Or the annual results of Pic o de Crop?

    Like

  8. Jeff Cumberbatch August 9, 2015 at 10:19 AM #

    David, your question is partly answered in the final part of my column today. I agree that the political class is unlikely to reform the law by statute, but recent decisions have now given the necessary tools to do so to the judges. Thing is, though, that the local printed press rarely fights defamation claims, especially those against politicians, and it will depend on how prepared are the judges to use the available material to effect change.

    Like

  9. David August 9, 2015 at 10:21 AM #

    @Jeff

    The last statement of your comment is most apt – ”Or the annual results of Pic o de Crop?’

    If you heard the to radio commentary on VoB radio of the Pic o de Crop finals there was alot of byplay between Ronnie Clarke and the visiting Trinidadian commentator. What was interesting was to compare how they scored the performances and how their individual biases shone through, and they acknowledged it.

    Like

  10. David August 9, 2015 at 10:24 AM #

    @Jeff

    Your last comment is where the rubber meets the road and why BU continues to champion an uncompromising view as it relates to the traditional media. We see from the recent mreger of the Gleaner and OMC, it is a money game.

    Like

  11. David August 9, 2015 at 10:43 AM #

    @Caswell

    Nice words but it is the very political class with a vested interest in the status quo who have to champion the change you desire.

    Like

  12. Jeff Cumberbatch August 9, 2015 at 10:47 AM #

    So very true, David. It’s all about the money. After all, the media are not a charity!

    Like

  13. Gabriel August 9, 2015 at 4:17 PM #

    An interesting standoff is playing out in T ‘n T with Afro Raymond and the Invaders Bay Project.The developer is abandoning the project given that there is an election due next month and Raymond’s JCC intervention on the use of state lands and the country’s planning laws.The investor is interested in an outright purchase which evidently was not envisaged in the Planning Laws.The investor thinks the JCC’s constant intervention will create more hiccups for the project.A lesson in democracy in T’nT and a lesson for the objectors of the Cahill project.Lennie St Hill made the point.

    Like

  14. David August 9, 2015 at 4:29 PM #

    @Gabrial

    It shows what advocacy can do. In Barbados we have a government which refuses to come clean on the Cahill project and we continue to take it.

    Like

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