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
A Nation Under Law (iii)
By Jeff Cumberbatch
Initially, […]I did not intend that this essay on the rule of law should be extended to as many instalments as three, but the opening of the Law Year in a few regional jurisdictions; the release of a book by a sitting US Supreme Court justice; and some provocative comments from an English Law Lord together with some other related phenomena all seemingly conspired to provide enough relevant fodder for another part or two.
Too besides, readers of this column should have surmised by now that I am far more comfortable discussing the law and its operation in society than the admittedly more populist issue of partisan politics that is frequently reduced in these parts to the lowest common denominator of the personalities of the leading participants rather than being raised to the higher level of the quality of their contributions on significant issues. The situation is further exacerbated by the predictability of the contributions in this context of most of those who attempt public commentary and the tired reluctance of the very actors to debate the hard issues beyond mere assertion.
Because of the diverse nature of the topics covered by the writers and speakers last week, it may be preferable to discuss them separately although, given their provenance, their content offers some insight into the perspectives of those who are constitutionally charged with the practical administration of the rule of law in the various jurisdictions.
In Trinidad & Tobago, Archie CJ has firmly asserted the view that common sense should dictate that the carrying out of the sentence of death by hanging is not the solution to the spiralling murder rate in the twin-island republic. He appears to base this view on a combination of an apparent moratorium on such executions – the last occurred some sixteen years ago-; the number of those awaiting trial for murder– an estimated 514-; the dubiousness of the penalty of a deterrent and the sheer repugnance of executing even a fraction of the number awaiting trial even assuming that they were found guilty. In his words, “…do we really believe, assuming that a significant fraction of those persons are found guilty, that we will be able to hang several hundreds of people or that if we tried we could stomach it?”
Of course, the learned justice was mindful of his and the court’s limited jurisdiction in the matter, recognising expressly that this was a matter for the legislature and, by extension, the people of the country, but he decried too the judicial sense of futility of pronouncing a death sentence nowadays.
These sentiments are in sharp contrast to the view expressed recently by my learned friend, the retired Justice Leroy Inniss, who has advocated keeping the penalty on the statute books even as Barbados struggles to come to terms with its international undertakings, a partly self-imposed and partly judicially-enforced moratorium on execution of any imposed death penalty longer even than that in Trinidad & Tobago, and a hemispheric mood that for the most part regards the imposition of death penalty as an inhuman and a poorly-thought-out response to a grave societal problem. In these circumstances, it may be difficult to accommodate a view that the death penalty remaining a legal form of punishment will serve any useful purpose, no matter the eminence of its source.
Moreover, with all respect to the opinion of Mr Justice Inniss, it seems particularly unseemly and perhaps unnecessarily dangerous to add to the number of laws on our statute books for which there is little likelihood of enforcement. What may be more needful at this stage, if we should be so lucky, is a parliamentary debate on the issue; not one premised on the toeing of the unswerving party line as espoused by our current Westminster export-model system of governance but, rather, one based on the expression of the member’s conscience or, more desirably though less likely, that of his or her constituents collectively.
We have skirted this difficult question for far too long. And, after all, some things are more important than partisan political stances.
Across the globe, in New Zealand, the Lord Chief Justice of England & Wales, Lord Thomas of Cwmgiedd, advanced a revolutionary view of the concept of judicial independence in a speech to a convocation of the Commonwealth Magistrates and Judges Association. Rather than counselling his fellow judicial officers to adopt the traditional stance of abstentionism in the political sphere, he urged them to take “proactive steps” to secure adequate funding for a justice system that is becoming “unaffordable to most people”.
In an article by Owen Bowcott in the Guardian newspaper last Thursday, Thomas LCJ is reported as enjoining, “…Judicial independence must not mean judicial isolation…the judiciary must explain the centrality of justice and why it matters. That task cannot be left to others. Transparency and openness are crucial to instilling public confidence in the judicial system…”
The Lord Chief Justice’s comments were made in the context, as already noted, of funding for the justice system, a point likewise referred to in the speech of Archie CJ at the opening of the Law Year in Trinidad & Tobago. There, Archie CJ bewailed “the inability to obtain the necessary financial resources to implement critical infrastructure projects, although, unsurprisingly, he did not go as far as Thomas LCJ did in advocating a reformation of the concept of judicial independence so as directly to engage the political directorate.
Given our apparent judicial tradition of being perceived as being politically detached and, at most times, the existence of a healthy mutual respect for each other’s constitutional authority, it is unlikely that Lord Thomas’s advice will resonate in this region anytime soon. Yet few will want to deny that the justice system has not profited from the customary disengagement from the public sphere. This has consequently led to a climate of mistrust and suspicion; a circumstance that a notion so important as the dispensation of justice could very well do without.
Those days when a judge could state with some degree of pride that he or she never reads the newspapers are arguably, and happily, now of the past. And a local tradition that appears to abhor the idea of any judicial officer being invited to speak publicly on matters of law serves only to enforce a regime of mystery rather than the more desirable one of openness in the justice system.
To be continued…