Jeff_column

The Jeff Cumberbatch Column – A Nation Under Law IV

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

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.

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24 Comments on “The Jeff Cumberbatch Column – A Nation Under Law IV”

  1. pieceuhderockyeahright September 27, 2015 at 5:38 AM #

    @ Mr Cumberbatch.

    You are humble in this and all your articles.

    You are to be thanked for your obvious deferrence to one of our own Trevor Job Clarke

    Maybe the BlogMaster might seek to put up a blog where others of us might pay homage to his service to Barbados and Barbadians

    Like

  2. David September 27, 2015 at 6:59 AM #

    @Piece

    BU will post a recognition of Trevor Clarke’s service if it is received.

    Like

  3. Bush Tea September 27, 2015 at 7:02 AM #

    The truth is that people like Sir Cave, who are OBVIOUSLY of above normal intellect and self-confidence and who come equipped with full sized balls, and impressive oratory skills OWE a DEBT of service to their communities in ways that ordinary bushmen and other brass bowls can’t possibly owe.

    Such persons come along once in a blue moon.

    That Hilary was such a person was patently obvious leading up to the ‘Mutual affair’.
    Here was a black Bajan with a vision….; with a knowledge of our TRUE predicament as black people in Barbados; with an ability to articulate like no other; with an ability to inspire (and to bully) others…. and most importantly, one whose view of whites was ‘tempered’ by living in England (or some other society not dominated by Bajan brass bowls – who revere them).

    When therefore Sir Cave allowed himself to be distracted from his clear mission in life by those Mutual ‘enticements’, and actually accepted the meaningless post at Cave Hill and the shiite title of the oppressors, it signalled the end of hope for bajan brass bowls…

    …as a result we now find ourselves with jokers like Froon and Stinkliar holding positions that clearly should have been occupied by men of his ilk…

    People like Job Clarke and Mohammad Nasser are also special in that they are outliers … ‘freaks’ who would not allow themselves to be constrained by Bajan brass bowlery, but Sir Cave, like Moses, had the advantage of having been SPECIALLY prepared for the task of black enfranchisement …. but unlike Moses, he fell for the temptations of the Egyptians….

    Jeff should take note also…
    Men of vision and talent such as himself MUST be reminded that “to whom much is given, much is expected….”

    ….all Bushie got is a damn whacker, but woe betides any shiite that cross the whacker’s path ….🙂
    LOL ha ha ha

    Liked by 1 person

  4. David September 27, 2015 at 7:10 AM #

    @Bush Tea

    We listened and read the outpouring of congratulations for Sir Hilary’s presentation this week (Jeff’s column included). We do we feel to do so? As civic minded citizens are we not suppose to contribute to our society the best way we are able to at all times?

    Like

  5. de Ingrunt Word September 27, 2015 at 7:57 AM #

    @Jeff, the argument re ‘Affirmative Action’ and the Vice Chancellor’s call to gov’t “to rethink its legislative strategy” resonates with me based on a recent chat here on BU.

    Related to the ability to realign the corporate racial imbalance with this legal provision that “legitimises the possibility of affirmative action” you go on to say that “it is scarcely surprising that this provision has rarely, if ever, been referenced in the national discourse.”

    That sir is an interesting statement. I posit that the lack of reference was not the same as lack of use.

    You are absolutely right that the words ‘affirmative action’ have rarely been used in local discourse but I offer that they have been used extensively in a sotto voce drumbeat that became quite deafening in the 70’s and beyond.

    Your article in fact can be considered classically intuitive (or deliberately sage) in bringing together one of the leading proponents of that drumbeat.

    I recall Mr. Clarke as a strong advocate of black empowerment and too a successful businessman who railed loudly against the shenanigans of the Bridgetown bankers and corporate elite who created hurdle after hurdle to stymie black businessmen.

    He along with Nasser, Rayside and others spoke out and demanded some ‘set-asides’ or special considerations at the governmental level in order to survive and prosper. They railed for a level corporate playing field and for advancing some governmental helping hands for small black businesses. And this long before any plans from Mr. Thompson for set-asides.

    So the context and dialogue of ‘affirmative action’ were in my view certainly firmly and necessarily in play here.

    It has never been ‘referenced in the national discourse’ because the successive Black governments have actuated the policy without the fanfare or ridicule seen in the US.

    So as Yogi once also said: “In theory there is no difference between theory and practice. In practice there is”

    Doesn’t he always so eloquently speak to the issue!

    Like

  6. Jeff Cumberbatch September 27, 2015 at 8:41 AM #

    @DIW

    Thanks for your comments. I am afraid that my point was much less sophisticated than yours; I was, in fact, merely providing the legislature with the necessary “legal clothing”, should it need it, to effect Hilary’s suggestion.

    Are you saying that there has already been such action taken to the benefit of black businesses on the part of local administrations?

    Like

  7. ac September 27, 2015 at 9:05 AM #

    FOR criticism i give Bush Tea an A+ with a doctorate certification. He use criticism like a bull dozer , however in some way his Briticism of Sir hilar can be applied to himself in this instance, Both Knew where the undertow was and both have done little to correct it ., Criticism like noses they come in all shapes and sizes easy to see but hard to remove,
    To you bush tea i say you are in need of a good bush whacking for doing nothing,

    Like

  8. de Ingrunt Word September 27, 2015 at 9:37 AM #

    @Jeff, re “I am afraid that my point was much less sophisticated than yours..”. Spoken like a wise and skillful professor of Law! LOL.

    And re your: “are you saying …there has already been such action taken to the benefit of black businesses on the part of local administrations?”

    Absolutely.

    Of course unlike you I can only be anecdotal as compared to your insightful, empirical commentary.

    But the ‘scandal’ list of the housing projects, fancy buildings and so on are rife. I suggest that the we saw ‘affirmative action’ often with those type matters.

    In US they would just be boondoggles or pork a la the ‘Alaskan bridge to no where’.

    In Barbados they gilded the coffers of many black entrepreneurs and therein is the rub.

    Yes of course many of those projects went to white businesses too but the genesis and main focus was to correct a wrong, to empower and to put recurring revenue in the hands of Black business to enable them to grow and compete with their more established counterparts.

    I think that can be defined as ‘affirmative action’.

    Were we not a Black majority (only) parliament you can be assured that the issue would have been vociferously raised to cite the racial subplot …in our case it was simply a B or D largess issue.

    Like

  9. Jeff Cumberbatch September 27, 2015 at 10:27 AM #

    @DIW

    Interesting information, I must admit, and it makes a point glaringly missed and certainly not conceded even for the sake of proportionality by Sir Hilary. Hence his recent injunction.

    I wonder though -is it that the relevant administrations had little choice given the numerical predominance of black businesses rather than a deliberate attempt on their part to “swing their cudgels and correct the imbalances”?

    After all, you must concede,of course, that all this was done without any expressed intention to cause the effect you attribute to it; although this is not a surprising phenomenon in light of our electoral culture.

    It is an issue worthy of further exploration, I believe.

    Like

  10. Caswell Franklyn September 27, 2015 at 10:40 AM #

    You must excuse me, I stopped listening to Sir Hilary when he allowed himself to be bought by the Mutual and then Sir Charles. Beware of anyone who abandon their principles so easily for a mere thirty pieces of silver. He is only now trying to remake himself after he was promoted away from Cave Hill.

    Like

  11. Dompey September 27, 2015 at 11:16 AM #

    Caswell Franklyn

    You’re the most self-righteous individual I have had the displeasure of listening to and I certainly hope that your hypocrisy doesn’t befall you some day sir .

    And Jesus said onto the multitude as their were about to stone the woman: ” He who is without sin cast the first stone.”

    Caswell, let me ask you this question as a man who I do believe command some measure of respect in Barbados: who amongst us on God’s green earth can stand in judgment of sin brother?

    Like

  12. Bush Tea September 27, 2015 at 11:21 AM #

    @ Caswell
    Bang on!!

    @ Ac
    To you bush tea i say you are in need of a good bush whacking for doing nothing
    +++++++++++++++++++++++++++++++++
    …and of course having carried out your research and check the records throughly, you found no reference to a Mr Bush Tea having done one shiite…

    Damn woman !!!…. you may yet force a global downward re-evaluation of the term ‘idiot’

    Like

  13. David September 27, 2015 at 11:22 AM #

    @Caswell

    Are you hearing Bobby Morris struggling to define “economic democracy’ on afternoon radio?

    BU rest!

    Like

  14. Hants September 27, 2015 at 11:24 AM #

    This blog is full of history lessons and the highest level of intellectual discourse but today is the 27th of September 2015.

    What do you learned men propose as solutions to the problems that face Barbados today and in the future?

    Like

  15. balance September 27, 2015 at 11:25 AM #

    “BU will post a recognition of Trevor Clarke’s service if it is received”

    What service? making self serving noises is not service. Yes Mr Trevor Job Clark must be commended for his effort in pushing black enfranchisement but if truth be told the deck was not totally stacked against the likes of him and Mr Nasser; they squandered many of the opportunities – finance and otherwise a lot of other blacks were not fortunate to have and or/access- that came their way on the altar of wine, women and song. There is nothing wrong with that but do not cry and blame the system when the milk is spilt beyond reach. May he rest in peace.

    Like

  16. Caswell Franklyn September 27, 2015 at 11:29 AM #

    David

    Paramountcy of the DLP guides everything that Bobby Morris says and does. That is why he was such a failure at being a trade unionist.

    Sent from my iPad

    >

    Like

  17. David September 27, 2015 at 11:36 AM #

    It is also gratifying the hear Rawle Brancker agree with many concerns raised by BU through the years. There is an establishment that has to be dismantled. Like Bushie has stated over an over Sir Hilary can do more.

    >

    Like

  18. ac September 27, 2015 at 2:19 PM #

    @ bush tea How many times are you going to use the word idiot IDIOT

    To prove me wrong why don,t you turn a new leaf .How about applying some self serving action to all of those problems which you constantly bemoaned , How about stepping up to the political plate breaking it into several pieces and replacing it with a spanking new larger than life wash pan.
    You have a never ending story to tell about what is wrong, BY george ole man get up off your brassbowl and do something.
    The people who you constantly criticized might be brassbowls but they have more steel in their body than you have in your little toe,
    Truthfully i see you as the manufacture of brass mixed with acidic mouthings only to offend and saying nutting.

    Like

  19. Gabriel September 27, 2015 at 3:13 PM #

    Yea I hear all this noise about Trevor Clarke.He is notorious for using taxpayers dollars and not paying back.He was notorious for other things.If you listen to Mark Smart,a nudder one,you would think annuder one Holmes gone to prepare a place for the likes ‘o one ‘o de fellas who milked de system and help bankrupt a certain place.Blinking crooks for whom the word honesty does not exist.
    A reporter ask Clarke.”Which secondary school you attended”?Clarke’s response”At Harsun Kolij,they used to call me dustbin”.Trevor”dustbin”Clarke.Fudger!

    Like

  20. Zoe September 28, 2015 at 7:23 AM #

    Two very successful Black business men, now deceased, were Lionel Richards, C.L. Pitt & Co, and Marcus Jordan.

    They both acquired much wealth in real estate, and conducted their daily businesses with dignity, honesty and respect.

    Whereas, Trevor Clark and Nassar, both had great opportunities, but as alluded to by other commentators, squandered MILLIONS; Job Clark owed the BDB, MILLIONS, what did he do with this tax payer money? Jokers!

    And, they are other successful black business men, who worked hard, and were/are well off financially!

    The collective wealth of black Bajans, is immense, and I maintain that IF, they came together, they could easily have bought B.S. & T, and other white owned companies, BUT, they prefer to own LARGE houses, drive the fanciest SUV’s, and allow Trinidadians to come in and take over many local companies.

    This is NOT a question of COLOUR, it is an cultural mindset, attitudinal, that separates the East Indian, Syrian/Lebanese, Jew, from the Black man, generally speaking!

    Like

  21. William Skinner September 28, 2015 at 11:05 AM #

    A question for Jeff Cumberbatch: What effects do you believe the Public Order Act of 1970 had on the black nationalism in Barbados?

    Like

  22. Alvin Cummins October 2, 2015 at 6:10 PM #

    @ Detractors.

    Does anyone remember a certain minister who; upon being appointed Minister decided to “redress the imbalance” in the awarding of contracts? Does anyone remember that the Government of the day was taken to court because of this attempt? Does anyone remember that the case went to the Privy Council and what was the outcome? Trevor Clarke, and the Black businessman of the sixties and seventies, were not allowed, by the system, to become firmly established before the hammerer was lowered on them. It is interesting that the building once used by Trevor Clarke to set up Winifred Enterprises now houses offices of Williams Industries. It is also interesting (coincidental???} that the building that once housed Julie N. another successful Black businessman now houses Franchises owned by members of the above “Industries”.

    @ Zoe,
    It IS a question of colour. If or when a black person “engineers” the employment of Black persons in important positions, the cry goes up “NEPOTISM”, but every white business places white people (and or family) in the most important positions FIRST. (…..Industries??} and there are no cries of Nepotism. It is just “business.” I note that in your “list” you do not list white. You never mentioned, in your diatribe, the number of “white owned business that also contributed to the demise of the Development Bank, by NOT repaying their loans. Certain hotels come readily to mind. Does “honesty” apply to these also?

    @Caswell,
    Would you call yourself a clown? You should, for you are.

    Like

  23. Jeff Cumberbatch October 2, 2015 at 6:35 PM #

    @Mr Skinner

    I cannot claim to have been an eyewitness to the effects of the Public Order Act on black nationalism during the early 70’s. Indeed, I was still in junior school around that time. But from a legal perspective, it would have stymied the ability of all except the most articulate advocates of black nationalism to give a comparative analysis of local racial matters without risking the accusation that they were inflaming racial passions. Its impact would have doubtless been significant, in my view.

    Like

  24. William Skinner October 7, 2015 at 11:24 AM #

    @Jeff Cumberbatch
    Thanks so much for your response. The fact that you were quite young at the time but can still see how this Act would have “stymied” discussion about racial matters, is in line with many of us , who were rather active at that time. Once again thanks for taking time out to respond. Much appreciated. Keep up the good work.

    Like

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