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
Discrimination is not liberal. Arguing against discrimination is not intolerance – Richard Dawkins.
There might seem, to the less imaginative, to be no immediate connection between the issue currently being treated under this rubric, ¨the rule of law¨ and the apparent topic of the week for the local chatterati,
Sir Hilary Beckles’ presentation at Tuesday Leo Leacock Memorial Lecture. This would be a misguided assumption.
And while I have not been as yet afforded the happy opportunity to study the lecture in its entirety, press and other reports indicate that Sir Hilary’s disquisition traced the chronology of successive legislative measures over the centuries that had been specifically designed to preclude the majority of the black population from business involvement. If so, this would be indeed the very essence of the rule of law, the use of legislation and common law determinations as binding rules to order social and economic relations among the citizens.
Sir Hilary’s thesis should not be controvertible on the facts that those laws he referred to did exist and that they had the effect claimed, although of course the legal purists may justifiably claim that, search as we might, we will not find any such intendment expressly stated in the long or short titles of the statutes or, perhaps, even in the official versions of the parliamentary debates prior to their enactment.
Equally, it may be argued that the raison d’etre of some of these measures was located more in the legislators’ own self-interest of preservation of the plantation system than being specifically directed towards the exclusion of the black population from the local commercial sphere. The distinction between these desiderata is nevertheless arguably an exceedingly fine, and perhaps undetectable, one.
So that while the passage of the Located Labourers Act that preserved the concept of estate labour even post-Emancipation was clearly designed to entrench the social hierarchy of the plantation system, the intendment of the Agricultural Aids Act of 1887 was to preserve its existing economic structure by permitting impoverished planters to borrow money to carry on cultivation.
As stated above, I am not privy to the details of Sir Hilary’s doubtless insightful study of the historical-legislative issue. However, it appears as if his central thesis was the injunction to the current parliament immediately to rethink its legislative strategy and so avoid the gridlock in which he perceives we are now firmly enmeshed and that if not extricated from through ideological and intellectual renewal, may lead to certain destruction. It may be one of the quiddities of our political system that such a useful suggestion is likely to go unheeded, partly because of its source.
Herein perhaps, too besides, lies the difference between theory and practical reality. For the modern politician, with his or her primary and short-term concern being electoral success, the contemplation of a change in the hoary commercial status quo might prove a bridge too intellectually far and too electorally rife with risk.
Not that the legislature, as an entity, does not arguably possess the constitutional authority to prescribe the removal of endemic discrimination in any sphere through a local strategy of one version of affirmative action. Although our Constitution is premised on a concept of equality, to assume that at the time of our creation as an independent entity on November 30, 1966, the island existed in equilibrium of equality of opportunity for every citizen in all contexts would be fallacious.
This argument is supported to some extent by the decision of the founding fathers to insert expressly into the text of our supreme law a provision to the effect that while no law shall make any provision that is discriminatory either of itself or in its effect this shall not apply to any law so far as that law makes provision whereby persons of any such description as is mentioned in subsection (2) [race, political opinion, colour or creed] may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable. This provision, on one argument, legitimises the possibility of affirmative action positively to enable the position of a sector historically depressed because of any of the mentioned criteria.
Given the socio-economic and political realities of our contemporary civic existence, it is scarcely surprising that this provision has rarely, if ever, been referenced in the national discourse. I recognise here the announced, though unrealised, attempt by former Prime Minister the late David Thompson to guarantee a percentage of major projects to local SMEs. Nonetheless, in light of Sir Hilary’s reported admonition for all political parties to go into retreat and [to]¡ change the whole paradigm, its treatment there should necessarily be an agenda item.
Is it likely to be utilised? I doubt it. But then I might be particularly cynical in view of the seemingly inherent reluctance of the modern political culture to disturb the status quo in any significant regard. In the nature of things Barbadian, my erstwhile Principal’s [and now Vice-Chancellor¡¯s] revolutionary recommendations may eventually be lost in the effluxion of time and be displaced by more pressing partisan political concerns.
More is the pity.
The passing parade.
The announcements of two deaths last week piqued my interest for differing reasons. First, there was that of the former baseball star Yogi Berra [Mr. Lawrence Peter Berra] whose frequently convoluted and intriguing philosophical expressions, on more occasions than a few over the years, have provided fodder for this space either in commentary or as a title.
For an island where a human cry and no, please are understandable phenomena in ordinary conversation, some of Mr. Berra’s dicta might not appear at all unusual. He might have already prescribed his place of interment by the instruction to his wife to bury him wherever she wanted and surprise him. Unfortunately, she predeceased Yogi. He counselled, when you come to a fork in the road [you should] take it and informed, you may observe a lot by just watching. For him a player who could bat both left and right was undeniably amphibious and, given our present economic plight, who would dare disagree with him that a nickel ain’t worth a dime anymore?
The second was that of Mr. Trevor Job [Jah-Jah] Clarke. I had never met him face to face but, for some reason, he held a flatteringly high opinion of my legal research skills and knowledge and sought my counsel on the phone on several occasions. He was unfailingly pleasant and courteous in conversation and I got the distinct impression that he had not, for some reason, achieved his full potential locally, given the evident creativity of his intellect and his acute perception of local corporate issues. I do not know whether he felt similarly.
May they both rest in peace.